Davenport v. Averill , 2 Wend. 646 ( 1829 )

By the Court, Savage, Ch. J.

The commission was applied for in due time, so that the party was entitled to claim that the notice of the motion should operate as a stay of proceedings. (1 Johns. C. 391.) The rule, however, would have been granted, if the attention of the court had been called to it, subject to the costs of noticing the cause for trial, in consequence of the defendant’s delay in giving notice of his motion after issue joined. The notice, however, operated as a stay only until the rule for a commission was granted. Then an express order, staying the proceedings, was made ; and whether the plaintiff was bound to know the result of the motion, or was at liberty to proceed in the cause until served with a copy of the rule, is a question of practice, respecting which the court is not advised. When a defendant obtains a new trial, after a verdict against him, the plaintiff is not in default for not noticing his cause for trial, until a copy of the rule is served upon him. (9 Johns. [R. 265.) So, when a venue is changed, a copy of the rule must be served; but the practice, m a case like the present, is unsettled. Under these circumstances, we order the inquest to be set aside, but without costs.