Waterman v. Whitney , 7 How. Pr. 407 ( 1853 )

By the Court, Johnson, J.

In the case of Dresser vs. Brooks (2 Comst. 559; also 4 How. Pr. R. 207), which was a default in not serving printed copies of the case, Bronson, J. • said, “ although respondent has been regular, appellant would be relieved on terms, if we had power to grant it.” In that case, however, relief was denied, the remittitur having been sent down. I do not see why the same rule should not be applied in these cases. In neither case has the argument of the cause been delayed for want of the papers, and in each, counsel swear that the appeal is brought in good faith, and with the expectation of success; and although that expectation may be disappointed, yet we can not now see that the appeals are frivolous, or brought for delay. Unless the respondent, can show some delay or inconvenience from the non service of the papers, I think these defaults ought to be relieved against in all cases where good faith appears, on terms, in analogy to the old rule for relieving against defaults for want-of a plea. In the first of these cases, the motion should be granted upon condition that within twenty days appellants cause the return to be duly filed, and pay the respondents $10 costs of'opposing this motion, or otherwise that it be denied with $10 costs.

In the last case the motion should be granted on condition that appellant serve the printed cases within thirty days and pay $10 costs to the respondent, otherwise that it be denied with $10 costs,