Butts v. Campbell

Headnote

Where the plaintiff noticed his cause for trial, on information that the certiorari had been returned and filed, which was brought by defendant, and it appeared it had not been filed, through neglect of defendant. Motion for judgment as in case of non-suit was denied with costs.

Motion by defendant for judgment as in case of non-suit.—It appears on the part of defendant that the action in this cause was commenced in the Erie Common Pleas, and after issue joined, the defendant brought a certiorari to remove the same into this court. On the 4th November last plaintiff’s attorney noticed the cause for trial at the circuit held on the third Tuesday of November last. Defendant prepared for trial, the cause was not brought on to trial by plaintiff, and younger issues were tried. It appears on the part of plaintiff that his attorney resides about twenty miles from Buffalo, and that when the attorney sent a notice of trial in the cause to his agent at Buffalo, on the 4th November last, he requested said agent to ascertain, before serving said notice of trial on defendant’s

attorney, if the certiorari and return had been filed in this cause: if it had, to serve the notice; he afterwards received an answer from his agent that the return was made arid that he had served the notice of trial. On the 17th November he received a letter from the clerk of Erie county that the return had not been filed. It further appears on the part of plaintiff that the county clerk had informed defendant’s attorney previous to and on the 5th November last, that said certiorari and return were ready to be filed, and that he would file them as soon as the fees and postages were paid; that defendant’s attorney never had paid or offered to pay the same.