Baker v. Martin

Barculo, Justice.

It is unnecessary to enquire whether the Plaintiff could proceed without reviving the suit against the representatives of John Martin, or whether, if not, he has used due diligence in so reviving it. He must, at all events, show a satisfactory reason for not expediting .the cause up to the time of John’s death. (1 Barbour’s Oh. Pr. 244.)

A period of more than five months elapsed between the time of filing the bill and the death of John. The Plaintiff’s solicitor excuses himself in regard to three of the Defendants, by stating, that they were made parties as mortgagees of part of the premises in question, and there was reason to believe that the mortgages would be discharged before the other parties could be brought in, and then the bill might be dismissed as to them. If this were the only point of negligence, it might be excused.

But there is no excuse offered for not obtaining the appointment of a guardian ad litem for the infant Defendants.

Mor is there any sufficient excuse for not proceeding, by advertisement, against the non-resident Defendant. The affidavit is not explicit in this respect. It states that the solicitor was “ unable to get precise information” further than that Rebecca Luyster resided in the state of Ohio.

There is no affidavit of the Plaintiff. It appears, however, by one of the affidavits on the part of the Defendant, that Plaintiff has resided upwards of 20 years within a short distance of the family of Thomas Martin, deceased, of whom most of the Defendants are descendants—said Rebecca being a daughter of said Thomas. ' It can hardly be supposed that the Plaintiff was ignorant of her place of residence; or at all events, that he could not ascertain it and furnish the information to his solicitor.

Mor does the Plaintiff’s counsel answer that part of the Defendants’ affidavit which states, that before the commencement of the suit, Stephen T. Martin, a brother of said Rebecca, went to Mew York, at Plaintiff’s request, and informed Ms solicitor of the places of residence of the Defendants.

It is impossible to discover anything like diligence on the part of the Plamtiff. The bill must therefore be dismissed, with costs to the moving Defendants, and $10 costs of each motion.