Gilliland v. Morrell — 1 Cole. & Cai. Cas. 212

Majority

p. 212

William Gilliland v. Joseph Morrell.

Headnote

THE affidavit that was read stated, that in October, 1802, a motion was made on the part of the de - fendant for judgment, as in a case of nonsuit; which no one appearing to oppose, was granted as of course. The judgment, thus taken, was, in the same term, set aside by the plaintiff, on the usual terms of stipulating to try the next circuit, and paying the costs of not proceeding to trial. The stipulation was entered into, the costs taxed, and demanded, but not paid, and now continued unsatisfied.; that, therefore, and as the defendant’s only witness could not be found, he did not attend by himself or attorney, at the last circuit in April.

On these facts duly sworn,to, and on an affidavit of the defendant, that he had a good and substantial defence, as informed by his counsel, which he verily believed to be true ; that on the merits, the plaintiff could not recover, and that a material witness was wanting, without whose testimony the defendant could not proceed to trial, but which he could procure by the next circuit,

Fan Fechten

moved to set aside the verdict, and grant a new trial.

Woodworth, contra,

produced a certificate from the clerk of the circuit court, that the trial of the above cause was had on the eighth day of April last.

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when Mr. Fan Vechten appeared for Mr. Fisk, attorney for the defendant. On this, he contended, every irregularity was waived, and the verdict must stand, otherwise the chance of a verdict might be taken at any time after a little advantage obtained, and in ease of a want of success, a motion to set it aside resorted to.

This is an application to set aside a verdict. There are many facts stated. With respect to the entry of the rule for setting aside the judgment, as in case of nonsuit, there may be some doubt: The clerk finds no rule entered, but as there was a stipulation filed, the court take it for granted that it was on the usual terms. It is necessary, however, that in all cases of stipulation, there should be a demand of costs ; this demand should be accompanied with a copy of the rule, and if the costs be not paid in twenty days after, then the party may enter up judgment of nonsuit, and take the effect of his application. The defendant swears, that he did present a bill of costs, but does not say it was with a copy of the rule annexed ; this, too, was on the agent, and not on the party, or his attorney. The defendant, therefore, has not been correct in his proceedings, and if.the demand was not regular, the plaintiff was regular in noticing his cause for last April, and bringing it on to trial. But, admitting that in so doing, he had been guilty of an irregularity, the defendant’s appearing on the trial, is a waiver of all advantage to which he might, otherwise, have been entitled. It was decided last term, in the case of Brain v. Rodelicks and Shivers,^[1] that if a party appear, he waives all irregularity. But it has been

* Ante, p. 176.

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shown there was not any ; and if there was, the con-v duct of the defendant, has placed the case in the same situation as if there was not. The plaintiff, therefore, is regular. Against this, is read an affidavit of merits : on such an affidavit, the court will not set aside a regular verdict. There is no irregularity ; the defendant appeared, and has shown no excuse why he did not defend; for if his' witness could not have been obtained, the court, on the common affidavit, would have put off the trial. The defendant must take nothing by his motion.