Waller v. Sammons

Headnote

Motion for judgment as in case of nonsuit will be denied, with costs, where it would have taken at least one day to try the cause, and it was called out of its regular order on the calendar, as a short cause, the circuit judge having previously publicly announced to the bar not to try any causes during the remainder of the circuit, which would require more than one hour.

Motion by defendant for judgment as in case of nonsuit.

Defendant’s papers stated that issue was joined in this cause October 24th, 1845, and notice of trial given for the New-York circuit held on the 16th of March last, plaintiff did not try the cause, and issues of a later date were in the regular order of the calendar tried at the circuit. Plaintiff’s attorney stated that it was true that issue was joined, and the cause was noticed for trial as stated by defendant, and that younger issues were tried at the circuit, but denied that they were called in their regular order on the calendar, .but were called under the following circumstances, to wit: that Judge Edmonds, who held the circuit, after having during the first three weeks of the term proceeded with the calendar of causes from day to day in the usual manner, until he had disposed of all the' causes thereon up to Ho. 42, the" issue whereof was joined on the 17th of August, 1844, announced to the bar that during the remainder of the term, which would be only the following week, he should not try any cause in which there was any defence, or which would take more than one hour to try; his object being to dispose of all the causes in which there was in, fact no defence, and that all causes which would take more than one hour to try would be passed without prejudice, all of which, as the attorney for plaintiff believed, was well known and understood by defendant’s attorney. And further, there were about three hundred and fifty causes on the calendar, the issues of about two hundred and fifty of which were older than this cause, and had the calendar been called in the usual or regular manner, no cause, the issue whereof was as late as this one by several months, could by any possibility have been reached. This was an action of trespass on the case, for injuries done to the plaintiff’s child or servant, by defendant, by running over him with a horse and wagon, breaking his arm, ribs, &c. And that the trial would have occupied the court at least *one whole day, if not two, there were eight or ten witnesses to be examined on the part of the plaintiff, and a number on the part of the defendant.

After service of the papers for this motion, plaintiff’s attorney explained to defendant’s attorney the reason that he did not try the cause, and offered to stipulate to try at the' next circuit; which defendant’s attorney declined to do, unless the costs of the motion were paid.