Worthington v. Pierson , 3 Edw. Ch. 297 ( 1839 )

The Vice-Chancellor :

The question is, whether there be a necessity to renew this note upon the calendar succeeding the one on which it first appears ? I am of opinion it is not. The motive is to give notice to the opposite party ; and here, pac[ been brought home to him, by service of a copy of the affidavit and by the original being filed and noted on the October calendar. And when the counsel for the complainants moved for a decree, at the time the cause stood upon the January calendar, he should have apprized the court that an affidavit was filed ; and had he done so, I, probably, might not have allowed him to take such decree. The object of the rule is not to give any preference where a cause is really to be argued on the merits.

I must hold the complainant not regular in the course he has pursued. It is true that the opposing affidavits show there may be no meritorious defence. But the matter does not come before me in a way to require an examination into merits. If the defendant had come here expressly to be let in on merits, then I could have looked into the answer and affidavits with that view. It is before me on a point of practice.

I shall vacate the decree and all proceedings tinder it; but, as the point of practice is new, each party may bear his own costs.

The counsel for the complainant, asked : whether the court considered the affidavit of merits sufficient in point of form?

The Vice-Chancellor :—I conceive it satisfies the rule ; and contains all, if not even more, than was necessary.