Hees v. Snell

Headnote

Where sureties on appeal justified on notice to the respondent’s attorney, who refused to attend the justification, because the hour for which notice was given had gone by (the delay being excused), held, on affidavit of respondent that the sureties were irresponsible, that he was entitled to an order of dismissal of the appeal, unless the appellant served a new notice of justification, and the sureties justified anew in pursuance of such notice, or unless new sureties should be substituted who should justify.

The respondent, Hees, who is also the attorney, swears that the last day fixed for the justification of the sureties, on the appeal in the above action, was on the 2d day of September 1852^ at 10 o’clock A. M-, before Judge Belting, at his office in Amsterdam, ^Montgomery county. That the evening before, he was applied to by Mr. Ayres, the appellants’ attorney, to postpone the time of justifying until the 3d of September following; that he declined so to do; and on the morning of the 2d, repaired to Amsterdam, where he arrived before 10 A. M., and remained there, or about the village, until 2 o’clock P. M.; that he saw Mr. Ayres in his way, and supposed he was going to attend to the justification. That Mr. Ayres and the sureties not appearing, he left the place; that about 8 o’clock in the evening of that day, Ayres called upon him at Port Jackson, about half a mile from the office of Judge Belting, and informed him that the sureties were at Amsterdam ready to justify, and requested him to accompany him to the judge’s office, and attend the justification.

That he declined then attending to the matter, saying that he had waited nearly ail day, and that he had other engagements then on hand; that the sureties are greatly embarrassed and irresponsible; that one appeal has been dismissed with $10 costs, which have not yet been paid.

Mr. Ayres in his affidavit swears that on the 9th or 10th of August last, he served the notice of appeal; that on the evening of the 17th, as he was starting for New York, he received notice of exception to the sufficiency of the sureties; that on the morning of the 18th, he called on Mr. Hees to give him notice of justification, and there being some misunderstanding about the day of service of notice of exception, he served notice of justification for the 23d of August. That on the 22d the parties, at the request of Mr. Hees, postponed the justification, by an endorsement on the notice, to the 26th. That Judge Belding afterwards informed him he should not be at home on the 26th, and he prepared a notice of justification before Judge Cady, and after several interviews and much negotiation, it was finally agreed to have said justification before Judge Belding, on the 2d September following, at 2 o’clock P. M. That he and one of the sureties were ready to start by the cars at noon from Palatine Bridge, near which all the parties resided, and which would have enabled them to arrive at Amsterdam in season; but the other of the sureties was sick and could not be ready to start till the 5 o’clock train# the same day, which brought them to Amsterdam in about half an hour. That on arriving at Amsterdam he immediately went to Port Jackson, a short distance from Amsterdam, and gave personal notice to Mr. Hees of the presence of the sureties, and requested him to attend the justification, which he declined doing, alleging for reason the lateness of the hour; that he would go to accommodate Mr. Ayres, but as Jacob Cook had taken the burden of this prosecution, he did not deem himself bound to, and would not run after him. That he then returned to Judge Belting’s office, and the sureties justified. That the papers were filed next day with the clerk of Montgomery county, and notice served. That the appeal is important, as the judgment in the court below has been made the basis of a redemption of a valuable lot of land worth $4000.