Wilson v. Wetmore — 1 Hill & Den. 216

Majority

p. 216

Wilson vs. Wetmore.

Headnote

A party moving to quash or supersede a writ for some defect therein, must point out the defect, either in his affidavit, or notice of motion. It is not enough that the papers on which he moves contain a copy of the writ, in which the defect appeal’s.

P. Cagger, for the defendant in error, moved to quash or supersede the writ of error, on the ground that the name of one of the parties was omitted in the body of the writ. He moved on an affidavit, and what purported to be a copy of the writ; but neither the affidavit nor notice of motion mentioned any defect or omission in the writ.

M. T. Reynolds, contra.

The motion must he denied, with costs. Where a party moves on the copy of a writ or other paper, intending to rely on some formal defect or error in the proceeding, he must, either in his affidavit or notice of motion, point out the particular objection on which he intends to rely, to the end that the other party may have a fair opportunity to answer. It is quite possible that the defendant is moving on an erroneous copy of the writ, or that the plaintiff would have had some other good answer to the motion, if he had not been brought here without the slightest intimation of the objection which is now urged against the writ.

Motion denied.^[1]

(a) (a) In another case between the same counsel, a.motion was made to set aside an execution, on the ground that it was tested out of term. A copy of the execution was annexed to the moving papers, but no mention was made óf the error on which the party intended to rely; and the judge, for that reason, denied the motion with costs.