Corning & Horner v. Tripp

Headnote

Where plaintiffs entered judgment by default, the plea having been served one day too late, defendant swore to merits fully, giving particulars; the plaintiff showing regularity on his part, and that defendant was alleged to be in doubtful circumstances. Defendant let in on terms : judgment and execution to stand as security.

Motion to set aside judgment and default, and that defendant be permitted to come in and defend.— Defendant’s facts : Declaration served on defendant on the 22d July 1844, containing common money counts. Defendant’s attorney, on the 7th August 1844, enclosed a plea of general issue, statute of limitations and notice of set-off, in an envelope, and directed the same to the clerk of the Supreme Court, Geneva, N. Y., with directions to serve the same upon the agent of plaintiffs’ attorney. He put same in post-office at Randolph, Cattaraugus county, N.Y., and paid postage thereon. In the ordinary course of mail, it would have reached

the clerk on the 9th August, 1844: same was not received by said clerk until 14th August, 1844. On the 13th of August, 1844, judgment was entered for plaintiffs by default. Defendant’s attorney would have mailed said pleas directly to plaintiffs’ attorney at Albany, had he supposed there was not time for it to have reached the clerk at Geneva. Defendant has a full affidavit of merits, and gives particular, causes and grounds for. defence : one is, that the same debt has been paid by him, by conveying property real and'personal to plaintiffs’ agent or attorney, for plaintiffs, on a suit then brought against him by plaintiffs for the same indebtedness. That plaintiffs have not given him credit for $30 paid on the 26th [15 September, 1836, and other specifications. Plaintiffs’ facts : the declaration was served on the 22 July, 1844; pleas and notice served on clerk at Geneva, August 14, 1844; returned by plaintiffs’ attorney to defendant’s attorney, August 19, 1844; judgment entered 13th August, 1844; execution issued and tested 13th September, 1844: the circuit where the venue is laid is on the 9th October, 1844. The sum of $30 stated by defendant was credited to defendant on plaintiffs’ books, and deducted from the judgment. Defendant left this state, and was said to have gone to some of the western states, in the year 1837, and returned to this state about a year ago. Plaintiffs allege he is in doubtful circumstances.