Pentz v. Willoughby

Headnote

Where an action was commenced on a judgment in the Superior Court, after an order staying execution upon writ of error to this court; and on affirmance by this court, plaintiff entered judgment by default: subsequent to which, defendant brought a writ of error upon the judgment of affirmance. Defendant was allowed an order staying plaintiff’s proceedings upon his last judgment, until the principal case was decided in the Court of Errors.

Motion to set aside default and to stay all further proceedings in this cause until the decision of the principal case in the Court of Errors.— Defendant’s facts : this is an action of debt, on judgment rendered in superior court of New York, on a bond. On said judgment a writ of error was brought to this court, and judgment on said writ affirmed, July, 1844. On said last judgment a writ of error has been brought to the Court of Errors, on which is endorsed the proper orders, staying execution; this suit is brought on the judgment, upon which the said last writ of error is brought. Immediately on the decision of this court, plaintiff’s attorney entered defendant’s default for want of a plea. Defendants offered to pay plaintiff’s attorney costs of default on waiving same, which was refused. This case necessarily depends on the result of the action of the Court of Errors upon the judgment upon which the same is brought. Defendant swears to merits and also that the original judgment in the superior court of New York, was in the name of EIntheros B. Comstock, President &c., said Frederick Pentz having succeeded him in said office. When this suit was commenced, the original suit in the name of Comstock, President &c., having been removed to this court, by writ of error, this court made an order staying plaintiff’s proceedings upon the judgment, until the decision of this court, which order was made before issue joined in this suit. Plaintiff’s facts: this is an action of debt

on judgment in superior court of New York, entered 17th October, 1842, for $ 120,000 and #257‘91 damages and costs, which judgment was upon a bond given by defendant to the association for #60,000 and interest. At the time of rendering said judgment, there was due upon said bond for interest alone, #9,000, no part of which has been paid. This action was 28] commenced by declaration, June 2, 1843, previous to which time a writ of error was brought upon the said judgment in superior court, and an order staying execution; the bond filed upon said writ was in the penalty of a sum not amounting to #4,200; on the 29th July, 1844, this, court affirmed the judgment of said superior court; 12th August last, (eighteen days having previously elapsed to plead in), defendant’s default was entered for not pleading, and rule for final judgment. Judgment of affirmance in this court was entered 7th of August last; at which time there was due from Defendant Willoughby, for interest, # 16,200, and which is still due. One writ of error, brought by defendant upon said judgment of affirmance, has been quashed by the Court of Errors on the 23d September, 1844. Another has been issued, and was allowed 16th September, 1844, and an order made by the officer staying execution. The bond executed upon said writ is in the penalty of #5000. Plaintiff alleges he has a scanty security for his debt; and that defendant, by evading the statute requiring security upon a writ of error, prevents him from realizing the just amount of interest on defendant’s bond, and charges delay to be the sole object of bringing the writ of error.