Ex parte Root — 4 Cow. 548

Majority

p. 548

Ex parte Root.

Headnote

Where on motion for a ¡Tpon^^notico, the case is clear against the relater, the court toííA costs 11

Where more intervened*6])™ tweon the test and return of a capias ad re- Sf'thT’it was void.

^'HE Common Pleas of Erie county had, on mo ■ tion, set aside a capias ad respondendum, at the suit of R°ot; against M. K. St. John, administratrix, &c. on the ' ground that more than one term intervened between the _ _ test and return; and now, on an affidavit of this fact, and notice of the motion served on the attorneys of Mrs. S. John, in the Court below,

A motion was made for a mandamus to compel the Judges of that Court to vacate the rule, which this Court . , were clear should, be denied ; and then the question was raised whether the denial should be followed with costs.

J. Root, for the motion.

White & Bennett, contra.

The general practice, on denying motions of this kind, has been not to give costs, especially where the motion is merely ex parte. But where notice of the motion is given to the adverse party, which he opposes rightfully, as in this instance, and the law is plain against the relator, we see no reason why costs should not follow the denial. Such is the present case. The Common Pleas decided according to a known and well settled rule of practice.

Motion denied with costs