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Kelly v. Moody & Darby

7 Hill & Den. 156 Court N.Y. Sup. Ct. English

Delivered by Bronson, J.

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p. 156
Kelly vs. Moody & Darby.

Headnote

Where bail in error have justified irregularly, the defendant in error may move the court for an order to supersede the writ, without applying to an officer at chambers for that purpose.
The court for the correction of errors will not entertain such a motion, but will leave the party to his remedy by application to an officer at chambers. Semble.
If bail in error have justified in season, but in a defective manner, the court may allow them to justify anew, though the statute time for doing the act has passed.
A. Taber, for the defendants,
moved to supersede or quash the writ of error issued in this case to the Cortland C. P., on the ground that the bail in error had not justified pursuant to the act of May 7th, 1844. (Sess. L. of '44, p. 466, § 1.) After exception, the bail justified in proper time; but it was done ex parte, without notice to the defendants in error.
R. J. Hilton, for the plaintiff in error.
The court cannot grant the motion. Application should have been made to an officer at chambers. (2 R. S. 598, § 36; Boyd v. Weeks, 6 Hill, 71 .) Should the court entertain the motion, we then ask leave to justify anew. It appears by the affidavits that the attorney for the plaintiff in error had not seen the recent statute changing the practice, at the time of justifying bail.

By the Court,

The justification was insufficient for the want of notice to the opposite party. It is then made a question whether the defendants in error are not confined to the remedy provided by the statute, viz. an application to an officer at chambers for an order superseding the writ. We think not. Motions to supersede the writ have often been made here. (Murray v. Buck, 10 Wend. 619 ; Stearns v. Kenyon, 5 Hill, 519 .) The statute only provides an additional remedy, without taking away the common law power of the court over its own process. It seems that the court of errors will not entertain such a motion. (Boyd v. Weeks, 6 Hill, 71 .) But this is a mere question of practice, which each court may settle for itself.

p. 157
As the time and. mode of justifying bail in error have been regulated by statute, it is said that the plaintiff can have no relief. The time for doing an act, when prescribed by statute, cannot be enlarged by a commissioner. (Jackson v. Wiseburn, 5 Wend. 136 .) And there are cases where if the party neglects to act within the proper time, his right will be gone beyond the power ofrelief. (See Clark v. McClaughry, 22 Wend. 627 .)[1] But as a general rule, when the thing was done in due season, though in a defective manner, the party may be relieved; and defaults will be set aside, in cases where the practice is regulated by statute, as well as where it depends on the rules of the court. (Murray v. Buck, 10 Wend. 619 ; Stearns v. Kenyon, 5 Hill, 519 ; Platt v. Torrey, 18 Wend. 572 ; Smith v. McFall, id. 521; Hawley v. Bates, 19 id. 632; Whaling v. Shales, 20 id. 673; Cutler v. Rathbone, 1 Hill, 204 .) The plaintiff should be allowed to justify anew on paying the costs of the motion.

Ordered accordingly.

(a) (a) See also Moot v. Parkhurst, ( 2 Hill, 372 .)

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