Aiken v. Webster ( 1845 )

The Opinion of the Court was delivered by

Treat, J.

Aiken brought an action against Webster. Judgment was rendered therein for the defendant. Aiken prosecuted an appeal to this Court, and at the July term 1842, the judgment was reversed for non joinder in error, but no order was made for the remanding of the case. Aiken now moves the Court to remand the cause for further proceedings.

This motion would have been granted as a matter of course, if asked for at the time the judgment was reversed. But after a term is permitted to elapse, reasonable notice of an application of this character, should be given to the adverse party. It is now more than three years since the reversal of the judgment, and the defendant may regard the suit as fully determined. The consequences of allowing the motion might be an ex parte trial at the Circuit, and the recovery of a most unjust judgment against the defendant. By giving him notice of the application, he would be prepared to follow the case to the Circuit, and have a fair trial on the merits. The motion is denied.

Motion denied.