Fenton v. Garlick
New York Supreme Court
VAN BUREN, for the defendant, moved to set aside the default, and all subsequent proceedings in this cause, for irregularity. _ It appeared that this was an action of debt, on a judgment recovered against the defendant in the state of Ver- , 0 ■mont; that no notice of any assessment of damages, or , . ° mquiry of damages had been given to the defendant, , , - , . . , nor had a copy ot the costs, or notice of the taxation, been served upon him, or his attorney.
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VAN BUREN, for the defendant, moved to set aside the default, and all subsequent proceedings in this cause, for irregularity. _ It appeared that this was an action of debt, on a judgment recovered against the defendant in the state of Ver- , 0 ■mont; that no notice of any assessment of damages, or , . ° mquiry of damages had been given to the defendant, , , - , . . , nor had a copy ot the costs, or notice of the taxation, been served upon him, or his attorney. There was also an affidavit of merits; and it appeared that the defendant’s attorney had sent a plea to be filed in the J r clerk’s…
1Per curiam
The first question is, whether'the pláintut was regular m having interest on his ■ debt taxed by the clerk, without calling in a jdry of inquiry. The actioh is debt, on a judgment in Vermont; 'the case' is therefore to be distinguished' from that óf Messin v. Massarene; (4 Term Rep. 493.) for that was an action of assumpsit upon a foreign judgment. In the one case the plaintiff recovers the sum in numero; but the other is an action sounding wholly in damages. In Blackmore v. Flemying, (7 Term Rep. 446.) it was held to be at the election of the plaintiffs, tó have the prothonotary tax interest…
2Cited by1 opinion
- Ford v. BrooksSupreme Court of Louisiana · 1883