Ryghtmyre v. Durham

Headnote

Where, after verdict and before the decision of the court on a case made for a new trial, one of two defendants dies, the plaintiff is permitted, if a new trial be refused, to enter judgment against both defendants as of a term preceding the death of the party; such leave will be granted at a special term, on an ex parte application.

In September, 1831, the plaintiff obtained a verdict in this cause for $169,73, the action being trespass. The defendants made a case, on which they moved for a new trial; which application was not disposed of until January, 1834, when the court refused to grant a new trial. In May last the plaintiff filed the circuit roll and pontea, and entered the usual rule for judgment. The defendant Durham having died in 1833, the plaintiff, at a special term in September last, obtained a rule that the rule entered on the decision of the cause to be so amended as to authorize judgment to be entered for the plaintiff nunc pro tunc as of October term, 1831, and that the plaintiff have leave to enter up judgment as of that term. Judgment was accordingly entered against both defendants. ' A motion was now made by the executor of Durham to set aside the rule of September, and all proceedings had thereon, on the allegation that such rule was obtained without notice, and that by the provisions of the statute, 2 R. S. 386, § 1, the plaintiff being authorized to take judgment against the surviving defendant, was bound to take such judgment, and was not entitled to a judgment against both defendants.