Howard v. Freeman
The Superior Court of New York City
This was an appeal from an order made in November, 1866, at special term, refusing, to open and vacate a default and inquest, findings of fact and conclusions of law contained in a decision of the judge of the court at special term, and all proceedings therein, and to set aside the same for irregularity and a mistrial of the issues, and to stay proceedings until October term, until the return of a commission issued by the plaintiff, upon an application of the defendants, for…
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This was an appeal from an order made in November, 1866, at special term, refusing, to open and vacate a default and inquest, findings of fact and conclusions of law contained in a decision of the judge of the court at special term, and all proceedings therein, and to set aside the same for irregularity and a mistrial of the issues, and to stay proceedings until October term, until the return of a commission issued by the plaintiff, upon an application of the defendants, for such relief upon motion. The motion was originally made upon various affidavits of two of the defendants, (Freeman and…
1Opinion of the Court
By the Court, Jones, J.
The first question to be determined is : Assuming the defendants to be entitled, on the merits, to the relief they ask, have they pursued the proper course to obtain it ?
Under the law as it stood in this state prior to the constitution of 1846, a decision by a circuit judge refusing .to postpone the trial of a cause, on the ground of the absence of material witnesses, was regarded as so far affecting a substantial right as to be subject to review, and, if erroneous, to reversal. (Brill v. Lord, 14 John. 341. Ogden v. Payne, 5 Cowen, 15. Hooker v. Rogers, 6 id. 577.…
2Cases cited1 opinion
- Brill v. LordNew York Supreme Court · 1817
3Cited by18 opinions
- Quatre Parish Co. v. Beauregard Parish School BoardSupreme Court of Louisiana · 1952
- White v. Ouachita Natural Gas Co.Supreme Court of Louisiana · 1933
- Roberts v. BauerSupreme Court of Louisiana · 1883
- Magnolia Petroleum Co. v. MarksSupreme Court of Louisiana · 1954
- Metcalfe v. GreenSupreme Court of Louisiana · 1916
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