Cortland County Mutual Insurance v. Lathrop

Headnote

Where pleas are served, not verified by affidavit, when they are required to be under the rules, an attorney upon whom such pleas are served, if he regards them as a nullity, is hound to return them immediately, or give notice that they are regarded as a nullity.

The costs of one motion only will be allowed, where two or more separate motions contain substantially the same facts, and the same plaintiffs and attorneys ; they may be made as one motion. ( 2 Howard, 33 .)

Motion by defendant in each cause to set aside default and subsequent proceedings, for irregularity.

Declaration was on a promissory note in writing, made by defendant to the plaintiffs, on a policy of insurance, payable in such portions and at such times as the directors of the plaintiffs might agreeably to their act of incorporation require: the declaration counted upon this note, and described it in the body of the declaration, but did not set out a copy of the note at the close of the declaration, with a notice that it was the only cause of action, &c.: there was but one count in the declaration. A copy of the declaration was served on defendant’s attorney, February 11th, Í846. On the 25th February, 1846, defendant’s attorney served on plaintiffs’ attorney a copy plea of the general issue, copy special plea in bar, and notice of special matter in bar. On the 7th March, 1846, plaintiffs’ attorney entered default for not pleading, and served on defendant’s attorney, on the 9th March, notice of assessment of damages. There was no affidavit verifying defendant’s pleas, nor other affidavit of merits by defendant. Plaintiffs’ attorney did not return the pleas, or give defendant’s attorney any notice that they would be disregarded, but treated them as a nullity.

The facts in each cause were the same. Defendant moved on two sets of papers entitled in each cause separately.