Barker v. Norton — 3 Hill & Den. 474

Majority

p. 474

Barker vs. Norton and others, Commissioners of Highways of Granville.

Headnote

In opposition to a motion for judgment as in case of nonsuit made in behalf of de fendants who were prosecuted as commissioners of highways, it appeared that, previous to the circuit at which they alleged the cause ought to have been tried, their term of office expired, and others were duly elected and qualified in their places: Held, a sufficient answer to the motion.

Motion for judgment as in case of nonsuit, for not proceeding to trial at the last June circuit in Washington county.

The motion was opposed on the ground that the defendants were sued in their corporate capacity, and though issue was joined in the cause while they were in office, yet, before the

p. 475

last circuit, other commissioners were elected in their stead, and had in fact succeeded them.

P. Cagger, for the motion.

D. Wright, contra.

The defendants have now no in» terest in the action, and ceased to be parties on the election of their successors. Therefore they have no right to make this motion. Before the plaintiff can be put in default for not going to trial, the new commissioners must be made defendants on motion pursuant to 2 R. S. 388, 9, 2d ed. § 104.

Motion denied. '