Majority
p. 634Bedell v. Sturta. (At Special Term, December 3, 1857, Bosworth, J.)
Headnote
An order of arrest will not be vacated, on a motion made after the defendant has answered; on the mere ground that, the summons is erroneously entitled, especially when that defect is not specified in the notice, as a ground of the motion.When the cause of action is one, which, of itself, gives the plaintiff a right to an order of arrest, the order will not he vacated, because the moving affidavits deny the existence of the cause of action.
The defendant moves to vacate an order of arrest, by virtue of which, he is now held in custody. It was granted on the 10th of October, 1857. An amended answer to the complaint was put in, on the 12th of December. The original summons is entitled in the Supreme Court. The copy served is not produced, and how that was entitled does not appear. The notice of motion does not point out this irregularity.
As the cause of action is one which would authorize an execution'against the body, in case of a recovery, the order will not be vacated merely because the cause of action is denied. The opposing affidavits sustain that on which the order was granted. The complaint will not be set aside after an answer put in, merely because the summons was irregular. If the order of arrest is not wholly void, it should not be set aside for such irregularity, on a motion made after answer; if wholly void, the defendant does not need the interposition of the Court. Motion denied, with seven dollars costs to plaintiff, to abide the event See Union Bank v. Mott, 6 Abb. P. R. 315 , and the cases cited, in a note to it.
Cases cited
- Union Bank v. Mott 6 Abb. P. R. 315 p. 634