Jones v. Aldrich — 2 How. Pr. 159

Majority

p. 159

Silas Jones agt. Gilbert T. Aldrich.

Headnote

Where defendant moved on papers made out for a motion for judgment of non pros., but drew his notice of motion for judgment as in ease of nonsuit, and it was objected to the motion for judgment of non pros., on the ground that defendant did not ask for it in his notice; held, that plaintiff was not misled by it; it was evident from the papers themselves what the notice should have been, and judgment for non pros, was made and granted on the papers.

June Term, 1846.

Motion by defendant for judgment as in case of nonsuit. Defendant’s notice of motion stated that he moved for judgment as in case of nonsuit in this cause, by reason of the plaintiffs having failed to fie security for costs, according to the statute, &c. Defendant’s papers showed that an absolute order to file security for costs had been granted, which plaintiff had not complied with.

*P. Cagger, defendant's counsel.

S. V. B. Mallory, defendant's attorney,

p. 160

M. T. Eeynolds, plaintiff’s counsel.

H. K. Jerome, plaintiff’s attorney.

It was. objected that the notice of motion should have been for judgment of non pros. ; that defendant could not move for it under his notice for judgment, as in case of nonsuit.

Held, that the plaintiff was not misled •

by the notice, it was evident from the papers themselves what the notice should have been; it was not such an irregularity but what the defendant might move for judgment of nonpros. Motion for judgment of non pros, granted.