Carpenter v. Tuffs

Headnote

Where defendant was misled, in not finding the cause on the circuit calendar some days after the circuit commenced, and before the plaintiff had taken an inquest in the cause, he served a notice of trial and inquest for the neat circuit on defendant’s attorney; defendant was allowed to come in and defend on terms, although he had not served an affidavit of merits for the circuit, merits being sworn to on the motion. The suggestion mentioned by Mr. Justice Beaedslet, in 2 Howard, 151 , in giving notice of trial for a subsequent circuit before the close of the sitting circuit, approved and sustained.

Motion by defendant to set aside inquest and subsequent proceedings.

It appeared from defendant’s papers that issue was joined in this cause on the 21st July, 1845; was noticed for trial for the New-York circuit, held on the fourth Monday of December last. Plaintiff did not proceed *to the trial at that circuit, but stipulated to pay defendant’s costs of the circuit, and bring the cause to trial at the succeeding March circuit, to be held on the first Monday of March, 1846. Defendant’s attorney made out his costs, had them taxed on notice, and demanded them of plaintiff, and he refused to pay. At the March circuit, plaintiff did not put the cause on the calendar, until some time in the third week of the circuit, when the circuit judge granted an order ex parte to.have the cause placed upon the calendar- on motion of plaintiff. Defendant’s attorney repeatedly examined the general calendar during the first two weeks of the circuit, but did not find the cause thereon; he did not know that the cause was put upon the calendar (not having received any notice of it), until the afternoon of the 9th of April last, when he ascertained (by

accident) that the. plaintiff had taken an inquest in the cause; and on an examination of the calendar, defendant’s attorney found the cause entered on the calendar, not among the causes on the general calendar, but as the thirty-second cause at the end* of the general calendar, and after it had been made up. On the 3d of April last defendant’s attorney was served with a notice of trial of the cause, for the first Monday of May thereafter. Judgment was entered on the 9 th of April last. Defendant swore to merits. On the part of the plaintiff it appeared that no affidavit of merits was served on plaintiff until the 4th of May last, and after judgment had been entered in the cause. The cause was noticed for trial for the third Monday of March last, and on the 10th of March plaintiff filed with the clerk a note of issue, and paid the fees, but the clerk refused to put the cause on the calendar. On the morning of the first day of the circuit, in open court, plaintiff applied to the court to correct the calendar, and the circuit judge directed the clerk to put this cause on the calendar, which he did, and noted it to come in according to the date of its issue. On the 8th of April the cause was regularly put on the day calendar, and called in its regular order thereon, and an inquest taken the 9th of April. Plaintiff stated that the March circuit being quite short, and fearing that the cause might not be reached in its regular order, noticed it for trial and inquest for the succeeding May circuit.