Stover v. Batterman — 2 How. Pr. 135

Majority

p. 135

Martin Stover agt. Christopher Batterman, sheriff, &c.

Headnote

Where defendant’s attorney receives a stipulation from plaintiff’s attorney to try at a stated circuit, and gives admission of service, and retains the stipulation, he cannot succeed on a motion for judgment as in case of nonsuit for not trying the cause at an mtenening adjourned circuit.

April Term, 1846.

Motion by defendant for judgment as in case of nonsuit. Plaintiff’s attorney noticed the cause for trial at the Albany circuit, for .October, 1845. On the 4th of October (previous to the circuit), he served on defendant’s attorneys a notice of countermand, and a stipulation to bring on the trial of .the cause at the circuit, in April, 1846, and to pay defendant’s costs of preparing for trial at the October circuit, which service was admitted by defendant’s attorneys, and their costs subsequently paid. In January, 1846, an adjourned circuit was held in Albany, at which the cause was not' noticed for trial by plaintiff’s attorney, for the reason that he did not know of such adjourned circuit until it was too late to notice the cause for trial.

Defendant moved for judgment as in case of nonsuit, for not bringing the cause to trial at the adjourned circuit held in January.

E. A. Doolittle, defendant's counsel.

Wheaton, D. & Hadley, defendant's attorneys.

0. Allen, plaintiff's counsel.

J. Boies, plaintiff's attorney.

Denied the motion, costs to abide the event, on the ground that defendant’s attorneys had accepted the stipulation to try at the April circuit. Plaintiff’s attorney not knowing of the adjourned circuit in season to notice for trial, costs of motion were ordered to abide the event.