Everitt v. Wood — 7 Cow. 414

Majority

p. 414

Everitt against Wood.

UTICA,

August, 1827.

Headnote

The only to procure the °Jf enumerated it* for argument, and hearing, when p^^order^tó stay proceedmgS'

A motion was made, in behalf of the plaintiff, to vacate the judge’s order to stay proceedings ; which was granted with a view to a motion, by the defendant, to set aside the report of referees. The proposed motion related to the merits. The defendant had noticed it for argument, and placed it on the calendar, in October term, 1825, and again in February term, 1826. But since that time, it had not been noticed for argument by either party.

W. & H. G. Lowerre, for the motion.

G. Clark, contra,

cited 1 Caines, 484; 3 id. 151.

This motion was enumerated; and belonged to the calender. It is a rule in relation to that whole class of motions, that they may be noticed by either party; and brought to argument in their turn. The only mode of disposing of them, where there is an order to stay in force, is to notice and bring them to argument. The general order to stay proceedings operates till this be done. Such has been the practice ever since the decision in Jackson v. Brownell, (3 Caines, 151.) The anonymous case in the same book, (p. 152,) must have related to a non-enumerated motion : otherwise it is inconsistent with Jackson v. Brownell. The practice according to which we now decide, grew out of the general rule of January term, 1803, *which allows either party to give notice of an enumerated motion. The

p. 415

motion dearly to set aside a report of referees on the merits, is as enumerated as a motion for a new trial on a case.

Motion denied.