Barnes v. Harris

Headnote

A default taken at general term and judgment on a demurrer as frivolous, will be opened on terms, where it appears the opposing attorney was mistaken in supposing the notice of argument'served on him did not contain a clause that the demurrer would be moved as frivolous, and it appearing that it was bona fide intended to be argued, but the papers did not reach counsel in time to argue it.

Motion- by defendant to open default taken at the last October term, and for leave to argue the demurrer *The defendant’s attorney prepared his papers in this and other causes a week or more before the term, and took them to the court in his county, which he was obliged to attend professionally, with a view "to send them to his counsel at Rochester, but not finding an opportunity, he mailed the papers in this cause to his counsel on the 23d of October; they were not received until the 25th October, and after the court had adjourned. Plaintiff’s counsel had taken a default and judgment on the demurrer as frivolous. Defendant’s attorney stated that he supposed the demurrer was not noticed as frivolous, and did not know that it was until informed by his counsel ; he then examined his notice of argument, and found that there was a notice to that effect inserted in it. He offered plaintiff ’s attorneys costs, &c., to waive the default, which he declined.