Dayton v. Vincent

Headnote

It seems, that where a rule for judgment as in case of non-suit is granted on opposition, the defendant should serve a copy of the rule, and demand his costs; otherwise the plaintiff may set aside the rule on terms.

Motion to set aside a rule of last August term, granting judgment as in case of non-suit, unless plaintiff stipulate and pay costs.—Plaintiff’s facts. Plaintiff’s attorney was ignorant of the conditions of the rule for judgment as in case of a non-suit, and depended on defendant’s attorney to serve a copy, which was never done, and no costs ever demanded; he had always been willing to comply with the conditions of the rule; there was a dispute about the costs of the circuit; he told defendant’s attorney when he served a copy of the rule, he "was ready to comply with the conditions of it. Defendant’s facts: the motion in August was made on the usual papers, and was opposed by plaintiff’s attorney personally, and motion granted on the spot, in presence and hearing of plaintiff’s attorney, costs were taxed on regular notice to plaintiff’s attorney, and he opposed the taxation and knew the amount they were taxed at—after twenty days, the costs not being paid, defendant’s attorney proceeded and entered judgment.