Barheydt v. Adams
New York Supreme Court
Motion to set aside a rule vacating a judgment and all subsequent proceedings. The defendant is sued on a bond given by his ancestor, to which he pleads a former recovery for the same cause in October term, 1816: the plaintiff replies a vacatur of that judgment; to set aside which this motion is made.
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Motion to set aside a rule vacating a judgment and all subsequent proceedings. The defendant is sued on a bond given by his ancestor, to which he pleads a former recovery for the same cause in October term, 1816: the plaintiff replies a vacatur of that judgment; to set aside which this motion is made. It appears from the papers produced on this motion, that in October term, 1816, the plaintiff entered a judgment by default against the defendant and three others, sued as the devisees of J. J. Barheydt. That the defendant had not been arrested in that action, although judgment was entered…
1Opinion of the Court
By the Court,
Savage, Ch. J,
The proceedings in relation to the vacatur of the judgment of 1816, were wholly irregular. The defendants in the original suit were entitled to personal notice of the application to vacate the judgment. Service of notice in the clerk’s office, of proceedings after judgment, cannot be considered as due notice to a party. The defendant now before the court was also entitled to notice; for, although he could not be directly affected by the enforcement of that judgment, inasmuch as he had not been arrested, and therefore might be said not to be a parly to the record,…
2Cited by4 opinions
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- Gallagher v. Irish-American BankSupreme Court of Minnesota · 1900
- Collier v. CrossSupreme Court of Georgia · 1856
- Montgomery v. EllisNew York Supreme Court · 1851