Follet v. Sherman

Headnote

Where a party moves to set aside a default, &c., for irregularity, and shows a service of the pleading on the attorney for the opposite party, who entered the default, in consequence of not receiving such pleading; he must show that such service was made in strict conformity to the rule, otherwise he must pay costs to be let in.

Motion by plaintiffs to set aside default for not surrejoining, and all subsequent proceedings, for irregularity.

It appeared from plaintiffs’ papers that this was an action ■ of assumpsit commenced by capias ad respondendum on a promissory note. The writ served April 16, 1845. The declaration contained the common money counts, and other common counts in assumpsit. The defendant pleaded three pleas, first the general "issue; second, • non assumpsit within six years; and third, that' the action did not accrue within six years. Plain

tiff replied to the second plea, concluding with a verification, and to the third plea concluding to the country. About Nov. 25, 1845, plaintiffs’ attorney received a copy of rejoinder with notice to surrejoin. Plaintiffs’ attorney stated that he served a copy of surrejoinder on defendant’s attorney as follows: “ And this deponent further saith, that on the 31st day of December, 1845, this deponent served the defendant’s attorney with a copy of surrejoinder to the defendant’s rejoinder, by inclosing the same in a wrapper and directing the same to said defendant’s attorney at Newburgh, Orange county, where said defendant’s attorney resided, as this deponent then believed, and depositing the same, so directed, in the post-office at Batavia, where this deponent resided, and paying the postage thereon: that this deponent usually marked his letters on which he designed paying postage with the letters Pd. and the initials of his name ; that he has been particular, in serving'papers in this suit, to have such service made according to the rules of this court, and has in some instances actually paid the postage instead of relying upon the postmaster. That this deponent has no doubt that he paid the postage on such surrejoinder unless the same was marked as aforesaid, and no instance has come to the knowledge of this deponent where the postmaster failed to mail a letter as paid, which was marked as above by this deponent, and a few days after said letter was mailed he paid his postage bill in full.” On the 27th May, 1846, plaintiffs’ attorney mailed to defendant’s attorney a notice, requiring him to answer the surrejoinder in twenty days after service of such notice; and that from the time of serving the copy surrejoinder until the service of a copy bill of costs on the 18th day of June, 1846, he received no communication or intelligence from the defendant (who was an attorney of this court) or his attorney on the subject of this suit. The plaintiffs’ default for not surrejoining and rule for final judgment were entered 13th March, 1846; a copy bill of costs and notice of taxation served on plaintiffs’ attorney, June 18, 1846. Plaintiffs’ papers showed the correspondence between plaintiffs’ attorney and defendant, in relation to opening-the default, which defendant declined to do. Defendant’s papers showed that about the time a surrejoinder was due from plaintiffs’ attorney, and for several days' afterwards, defendant and his attorney were very diligent in their inquiries, at the post-office at Newburgh, for letters or packages to defendant or his attorney, and especially any which were mailed at Batavia, and they were told by the postmaster none such had beeen received, and that they *never received or saw any surrejoinder in this suit, and believed no such pleading or paper had been served.