Soulden v. Cook
New York Supreme Court
Motion to set aside .proceedings. The defendant was served with a capias returnable in August term, 1818. He retained an attorney to defend, who gave notice of appearance in a suit coupling with the plaintiffs, in this cause four other persons as plaintiffs, which notice was disregarded by the plaintiffs' attorney, and a judgment entered by default on the 9th May, 1820, for $418,33. In September last, the defendant was served with a scire facias -to revive the judgment.
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Motion to set aside .proceedings. The defendant was served with a capias returnable in August term, 1818. He retained an attorney to defend, who gave notice of appearance in a suit coupling with the plaintiffs, in this cause four other persons as plaintiffs, which notice was disregarded by the plaintiffs' attorney, and a judgment entered by default on the 9th May, 1820, for $418,33. In September last, the defendant was served with a scire facias -to revive the judgment. He excuses his laches for not applying at the October an^ January terms, and now applies to set aside the judgment which has…
1Opinion of the Court
By the Court,
Sutherland, J.
We would not refuse to set aside the judgment in the scire facias suit upon terms, could we also let the defendant in to defend in the original suit but that we cannot do. After a lapse of now full ten years, to set aside a judgment for irregularity, on the grounds relied on in this case, would be an extraordinary and unprecedented exercise of the powers of the court. Had the defendant not been arrested, or had he after his arrest been misled by any fraud or circumvention of the plaintiffs, and induced to believe that the suit was withdrawn or discontinued, wé might…
2Cited by5 opinions
- Waters v. WatersThe Superior Court of New York City · 1894
- Montgomery v. EllisNew York Supreme Court · 1851
- In re McCarranNew York Court of Common Pleas · 1894
- Moulton v. de ma CartyThe Superior Court of New York City · 1866
- Saffold v. KeenanSupreme Court of Georgia · 1847