Overseers of the Poor v. Plumb ( 1847 )

Morehouse, Justice.

In cases not provided for, the proceedings in this court are to be according to the customary practice as it existed heretofore in the Supreme Court. In the case of Chapman v. Van Alstyne, 6 Wend. 517, the Defendant had suffered four non-enumerated terms to elapse, before moving for judgment as in case of non-suit, and he was deemed to have waived his right. In the 9th Wend. 461, the court laid down a general rule as applicable to such cases. It establishes- that laches should not be imputable to a Defendant, if his motion for judgment, as in case of non-suit, was made at any time previous to the next general term, after the circuit at which the cause might have been tried; or for which it ought to have been noticed; and that after a general term had intervened, such application would not be heard, unless the delay was satisfactorily accounted for. This rule received a construction in Lyons v. Hoffman, 10 Wend. 576. It was held in that case, that a Defendant had, until the second general term after the circuit, to move for judgment as in case of non-suit, there having been no special term after the circuit previous to the first general term, without excuse for delay. The special term at Madison the week preceding the general term at Utica, would take this case out of the rule. The rule requiring special motions to be made at the earliest day possible, applies to cases of irregularity, and other questions appertaining to the orderly conduct of a suit, and when allowing an adversary to proceed, may well be deemed a waiver of the objection. Doty v. Russell, 5 Wend. 129. In this case the Defendant, within two days after the circuit, gave notice of his motion at a special term to be "held the ensuing month, at the residence of the parties and their attorneys ; such proceeding cannot be truly characterized as remiss and negligent, the synonyme of laches. My attention has been called to the case of Gray v. Jones, 3 Howard’s Special Term Reports, 71, decided by Justice Barculo. The circumstances of the case are not stated in the .report. There was an order to stay proceedings, and that furnishes a reason for diligence, and the justice could not have intended to lay down a rule as universal as the abstract, that “ a special motion should be noticed for the special term, first to he held in the county where it can he made. In the present organization of the court, no one can fail to discover as prominent in the system, the purposes of economy to the suitor and convenience to the profession, in the transaction of their business in person, from the liberal assignment of courts to every county. In cases requiring the greatest assiduity, where the court is held consecutive weeks in adjoining counties, a motion noticed for the second term being in the county where the parties and their attorneys reside, or the latter only, would be an indulgence commended to the court as being alike convenient and sensible. Motion granted.