Majority
p. 76Newell Bracket versus Joseph Simonds. August Term, 1828.
Headnote
Iri this Court,-no copy of a declaration or other pleading can be served upon the opposite party, until after the original has been filed with the clerk, ’ and an ap- • propriate rule entered in the rule book.Mr. Hawes, in behalf of the plaintiff, moved to set aside a default, which had been entered against him for not declaring, pursuant to a rule duly entered for that purpose, in the book of common rules.
It appeared, that the plaintiff’s attorney had delayed the drawing of his declaration until the last day limited by the rule; , that on the evening of that day, he served a copy of the declaration upon the defendant’s attorney, at Ms own house, but did hot file the declaration, nor enter the rule to plead, until the succeeding day. On the day after the service of a copy of the declaration, the defendant’s attorney went to the clerk’s office, and there ascertained, that, at the time when the copy of the declaration was served upon him, the declaration itself had not been filed. He thereupon entered a default against the plaintiff, for not declaring in due season.
The -motion now was, -to set aside this default. And it was contended, in behalf of the plaintiff that by the settled practice of the Supreme Court, a service of a copy of any pleading upon the opposite party, is conclusive evidence as to him, that the original has been duly filed. [ Smith v. Wells, 6 Johns. Rep. 286 .]
in accordance with the practice of the Supreme Court, set aside" the default in this case without costs, but observed, that in the city of New-York, there could be no good reason, why the pleading should not in all cases be filed, before a ■copy is served upon the opposite party.' In the country, where many attorneys reside ata distance from"’the clerk’s office, it might be productive of inconvenience, to compel the attorney to put the original paper on file in all cases, before the copy is
p. 77
served. And hence the reasonableness of the practice of the Supreme Court. But no" such inconvenience can arise with respect to this court. They therefore directed the following rule to be entered by the reporter.
Regula generalis.
“No copy of a declaration or other pleading shall be served “ upon the opposite party, until after the original shall have been “ regularly filed with the clerk of this court, and the appropriate “ rule entered in the rule book.”