Cook v. Tuttle
New York Supreme Court
Motion to set aside proceedings for irregularity. The copias in this cause was returnable on the first day of the last February term, viz. the sixteenth of the month. It was bailable process, but the defendant endorsed his appearance. On the seventeenth a declaration was filed de bene esse, rule to plead entered, and notice affixed in the clerk’s office.
Read the full summary
Motion to set aside proceedings for irregularity. The copias in this cause was returnable on the first day of the last February term, viz. the sixteenth of the month. It was bailable process, but the defendant endorsed his appearance. On the seventeenth a declaration was filed de bene esse, rule to plead entered, and notice affixed in the clerk’s office. On the tenth day of March the defendant’s default was entered, and notice of inquiry given for the nineteenth day of March, when a writ of inquiry was executed, rules for interlocutory judgment and inquiry having been entered on the…
1Opinion of the Court
By the court, Marcy, J.
The defendant having endorsed his appearance on the copias, although bailable process, was regularly in court, and the plaintiff had a right to take a default against him. The endorsement of de bene esse on the declaration did not destroy that right; nor was the plaintiff irregular in suing out a writ of inquiry, and making it returnable after the second week of term. The process prohibited by the statute from being sued out or made returnable after the second week of term, is process against the person or property of a party, not a writ of this kind, which is but a…
2Cited by2 opinions
- Colorado Springs Co. v. HewittSupreme Court of Colorado · 1877
- Turner v. BurrowsNew York Supreme Court · 1841