Hugenin v. Granger

Headnote

A delay of ten months from the entry of judgment as in case of non-suit, is fatal to plaintiff, who seeks on motion to be let in to try the cause on the merits.

Motion by plaintiff to set aside the judgment, as in case of non-suit, in this cause, and all proceedings on the pari of the defendant subsequent to a stipulation of February 4, 1844.—This action was commenced in assumpsit, 29th March, 1839 ; venue laid in Albany county; issue joined 30th April, 1839. The cause was several times noticed for trial by plaintiff’s attorney’s, for the circuit courts held in and for the county of

Albany, but not brought on to trial, for the reason of the absence of material witnesses for plaintiff, and some times put over by consent and arrangement with defendant’s attorneys, and for the reason of the delay in getting return to a commission issued by plaintiff to take the testimony of a witness residing in Illinois. On the 4th February, 1844, (the cause then never having been brought to trial), plaintiff’s attorneys gave to defendant’s attorneys a stipulation to try the cause at the April circuit. 1844, or of default thereof defendant’s attorneys might enter up judgment as in case of non-suit. The cause was not brought to trial at said April circuit, plaintiff’s attorneys not having received a return to said commission; and in April, 1844, after the circuit defendant’s attorneys entered up judgment, as in case of non-suit, in pursuance of the stipulation aforesaid, and on the 15th April served on plaintiff’s attorneys a copy of the bill of costs, with notice of retaxation. In December, 1844, plaintiff’s attorneys received the commission and testimony therewith from Illinois, and immediately applied to defendant’s attorneys to waive the judgment and permit them to try the cause, which the defendant’s attorneys declined doing. Plaintiff states the testimony is important and material for him on the trial of the cause ; papers for this motion were served 10th February last.