Majority
p. 57Jackson, ex dem. Williams and Washburn, against Miller. This motion was made on the authority of Jackson, ex dem. Livingston et al. v. Edwards, (1 Cowen’s Rep. 138.) said the application was too late- The Court might as well be called on to stay a writ of possession, after j udgment docketed. Where the defendant has thought
R. Weston, for the defendant,
moved that proceedings he stayed, on the part of the plaintiff, till the costs of a former ejectment, brought by Jackson, ex dem. Miller, (the now defendant) against Washburn, one of the lessors of the plaintiff, for the same premises now in question, in whichaverdict and judgment were rendered for the then plaintiff and a writ of possession executed, in virtue whereof the (now) defendant was put in possession, be paid. It appeared, by affidavit, that on the trial of the first ejectment, Washburn, the defendant, made title, by a lease from Williams, the other lessor in this suit, and that Williams claimed as heir of his father. On the trial of this cause, the same title came in question, on nearly the same evidence as in the first; that a verdict was taken therein for the (now) plaintiff subject to the opimon of the Court, upon which a case had been made, but not yet argued., though it had been noticed for argument by the defendant’s attorney. Washburn had absconded shortly after the trial of the first action, the costs of which had never been paid.
Headnote
A motion to stay proceedings in a second suit, till the costs of a former suit for the sa.ne cause are paid, is in season, if made at any time while the latter is in a course of litigation.Thus, the court will hear it after verdict for the plaintiffin the second cause, subject to- the opinion of the court, and a case made and noticed for argument by the 1 defendant.
D. Russell, contra,
p. 58proper to meet the question of title upon its merits, and that has been decided against him, the Court should not listen to an application of this kind. There is no case to be found where such an application has been sustained, at this stage of the proceedings, It would be unjust to permit a party to lie by, until the costs of the plaintiff have accumulated by a trial and verdict; and after nearly all the expense has been incurred which could arise in the whole course of the suit, then obtain a stay of proceedings. The application might, and should have been made at an earlier stage of the cause; and has been waived by delay.
We think otherwise ; and that the application comes before us in season, if made at any time while the cause is in a course of litigation.
Motion granted.