Reddy v. Wilson , 9 How. Pr. 34 ( 1853 )

Welles, Justice.

The only objection to granting the motion which I deem worthy of consideration, is, that the motion was not made at the Chemung. Circuit and Special Term, which commenced one week earlier than the present.

There is no doubt but a party must move at the earliest opportunity to get rid of an irregularity of his adversary, where the object is in no way connected with the merits, as is the case here. But it is not the practice, as I understand, to hold a party in default for not making a motion of this description at a special term connected with a circuit. Usually, such motions are not encouraged at the circuit, where there is generally more business, strictly pertaining to the circuit court as such, than can be transacted. This I have reason to believe is the case in the county of Chemung. In the present case, I think it would be too strict to hold the defendant involved in laches, for the reason mentioned, as it is by no means certain that the motion could have been heard at the Chemung Circuit, if it had been noticed there. It would only have been the trial of an experiment, which I think the defendant was not bound, at his peril, to have made.

The motion is granted, with liberty to the plaintiff to serve an amended complaint in twenty days after notice of this order; but no costs of the motion are allowed—costs are refused for reasons appearing in the papers, not necessary to be stated.