Majority
p. 104Simeon B. Jewett agt. Thomas J. Paterson, imp’d, &c. February Term, 1846.
Headnote
Costs will not be allowed on demurrer to a plea m abatementMotion by defendant to set aside default and all subsequent-proceedings.
The defendant interposed a plea in abatement in this cause, to which plaintiff’s attorney demurred; defendant joined in demurrer. The demurrer was noticed by plaintiff’s attorney as frivolous, and at the last October term (on the 21st October) judgment was rendered for the plaintiff. On the 28th October, defendant’s attorney served a plea and affidavit in the cause on plaintiff’s attorney by mail; on the same day defendant’s attorney was served with a copy of a bill of costs on the decision of the demurrer. It appeared that the rule was entered, *“judgment for the plaintiff on the demurrer to the plea in abatement of said Patterson: and that the ' defendant pay the plaintiff's costs on said demurrer; answer over to the declaration of the plaintiff within ten days, &e.” The rule was entered from a draft furnished by plaintiff’s counsel. On the 31st October, defendant’s plea was returned by plaintiff’s attorney, stating he declined to receive it until the costs were paid. Defendant’s attorney, on the 1st November, moved the court (then in session) to correct the entry of the rule by striking out the costs, which was granted; before the 17th November, defendant’s attorney served copy of amended rule on plaintiff’s attorney, which plaintiff’s attorney admitted he had received. On the 17th November, defendant’s attorney reserved the plea and affidavit on plaintiff’s attorney by mail. On the 24th of November, defendant’s attorney received a letter from plaintiff’s attorney stating that the defendant’s default was entered on the 22d November. Plaintiff’s attorney had not returned the plea and affidavit last served. Defendant’s attorney served plaintiff’s attorney with copy of the rule on demurrer as amended, and a stipulation to pay costs of default, &c., to have the same opened for the purpose of
p. 105
saving a motion merely; which, service was admitted by plaintiff’s attorney on the 10th of January, 1846, and a refusal by him to open the default.
A. Taber, defendants counsel.
H. Gay, defendants attorney.
6. L. Selden, plaintiff's counsel.
S. R S. Mather, plaintiff's attorney.
Granted the motion with costs, on the ground that the.rule for judgment on the demurrer was incorrectly.entered by plaintiff’s counsel, in ordering the defendant to pay the plaintiff s costs on the demurrer. The first service of plea and affidavit were held good for that reason.