Goodenow v. Butler — 1 How. Pr. 82

Majority

p. 82

Abraham Goodenow vs. Horace Butler et al.

Headnote

A stipulation by plaintiff to try at the next circuit, operates to compel a trial at the succeeding circuit, where the cause was not reached at the first circuit after the stipulation.

Motion by defendants for judgment as in case of non-suit.—The plaintiff had stipulated to try at the next circuit. The cause was duly noticed at the next circuit, but was not reached on the calendar. At the next circuit thereafter cause was called and passed, and younger issues tried, defendants now move on the stipulation. It is answered that it applies only to the next circuit after it is entered into.

Hefts Counsel. Mattison & Doolittle, Hefts Jittys.

Plffs Counsel. A. Birdsall, Plffs Mty.

The true meaning of stipulation is, that plaintiff shall try his cause the first opportunity afforded him, and it can not be tried at next circuit by reason" of not having been reached, there is no default to be taken advantage of, nor is there complete fulfillment of the legal effect of the stipulation on the part of the plaintiff. It should be regarded as operating to compel a trial at the succeeding circuit. Motion granted; but with leave to stipulate.

Rule accordingly.