Majority
p. 382Anonymous. moved to set aside a judgment in this cause entered on a report of referees, and for
Headnote
It is regular for the party in whose favor a report of referees has been made to enter judgment thereon, without giving notice to the opposite party of the signing of the report.The party intending to move to set aside a report of referees ■ must serve his papers therefor within four days after the signing of the report; and if he omit to do so, the court will not relieve him unless his neglect be sufficiently excused.
The case of Hendricks v. Bloodgood, ( 18 Wend. 670 ,) explained.
E. Pearson, for the defendant,
p. 383leave to serve affidavits with a view to a motion to set aside the report, on the ground that no notice of signing the report had been given. Nelson, Ch. J. The practice does not require that notice should be given. Pearson. In Hendricks v. Bloodgood, ( 18 Wend. 670 ,) the contrary was held. Nelson, Ch. J. It appears from the report of that case to have been said, that it should be the practice to give notice ; not that such was the practice. Pearson. That case is generally understood as having settled that "the practice then was, what it is there said it should be.
Then the case is misunderstood. The judgment cannot be set aside on the ground taken, nor will leave be given to serve affidavits, unless you show an excuse for not having served them within four days from the actual signing of the report.[1]
No excuse being offered, the motion was denied.
(a) (a) See Hendricks v. Bloodgood, ( 18 Wend. 670 ;) Clark v. Clark, (12 id. 239;) Grab. Pr. 576, 2d ed.