Reynolds v. Fountain — 4 Hill & Den. 52

Majority

p. 52

Reynolds vs. Fountain, adm’r, &c.

Headnote

Whbre judgment as in case of nonsuit for not noticing a cause for hearing before' referees is set aside on payment of costs, the plaintiff must notice the cause foi hearing immediately; and if he fail to do so, the defendant may enter his default and perfect a second judgment, without serving a new notice under the 44th rule.

If the plaintiff need time to bring on the hearing, he should ask it when the motion to set aside the judgment is made, and have the allowance inserted in the order.

The same rule prevails where a default for not pleading is set aside. If the defendant do not plead immediately, another default may be entered without giving a new notice or entering a new rule. . Per Bbonson, J.

This cause was referred in April, 1841. In November of that year the defendant served notice, pursuant to rule 44, requiring the plaintiff to notice the cause for a hearing within twenty days, or elect to discontinue and pay costs. The plaintiff having neglected to proceed, the defendant, in December following, entered a rule for, and perfected judgment as in case of nonsuit, pursuant to the aforesaid rule. On the 5th of February, 1842, the court, on the plaintiff’s motion, made an order that the judgment be set aside on payment of costs; but no further directions were given. The costs were paid, but the plaintiff took no measures to bring on the hearing. The

p. 53

plaintiff’s attorney died on the 5th of March, 1842. In August following, notice was given to the plaintiff to appoint a new attorney, and on the 8th of September the appointment was made and notice of it given to the defendant. On the 5th of October the plaintiff’s default.for not proceeding to a hearing was again entered, and judgment as in case of nonsuit perfected.

Woodruff 8f Young, for the plaintiff,

moved to set aside this judgment for irregularity. They insisted that the defendant should have served a new notice to proceed to a hearing in twenty days, and could not act upon the notice given prior to the first judgment, which was set aside.

A. Taker, for the defendant,

likened it to the case of a judgment by default for not pleading pursuant to a rule for that purpose. If the judgment be set aside, and the party does not plead, his default may be again entered, without a new rule to plead. If the plaintiff in this case wanted any further terms when the first judgment was set aside, he should have asked for them at that time.

By the Courts

I think the defendant’s counsel is right on this point of practice. Nothing but the judgment was set aside. The notice which had been given requiring the plaintiff to proceed to a hearing was not touched, and the defendant was at liberty to act upon it and enter a new default without further notice. Prior to 1837, the practice was to enter a rule and give notice that the plaintiff proceed within twenty days. (See 44th rule of 1830.) But in 1837, this and many other useless rules were abolished, and nothing but a notice, was required. The analogy between this notice to proceed in twenty days and a rule to plead within the like period is complete. If the default entered in either case for not complying with the notice or rule be set aside,.it cannot be necessary to give a new notice or enter a new rule. The old one has not ceased to operate, and another default may be

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based, upon it. When a default for not pleading is set aside) and no further order is made,, the party must plead immediately, or another default may be entered. If he wants time, he should see that time is given by the order. So here, when the first judgment was set aside, the plaintiff should have asked as much time as he thought necessary for bringing on the hearing) and the allowance should have been inserted in the order. The judgment is regular, but the plaintiff must be relieved orii terms.

Ordered accordingly;