Pixley v. Winchell
New York Supreme Court
The caF^as a& respondendum was tested August term, 1826, and returnable the 28th. of October, instant. The defendant put in special bail; neither he nor his attorney knowing anything of the irregularity. On the plaintiff’s declaring, the defendant and his attorney discovered it; now) t^ie next term a®;er discovery, moved to set aside the capias and subsequent proceedings. said, the defendant was too late with his motion, after putting in bail.
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The caF^as a& respondendum was tested August term, 1826, and returnable the 28th. of October, instant. The defendant put in special bail; neither he nor his attorney knowing anything of the irregularity. On the plaintiff’s declaring, the defendant and his attorney discovered it; now) t^ie next term a®;er discovery, moved to set aside the capias and subsequent proceedings. said, the defendant was too late with his motion, after putting in bail. (17 John. 63; Str. 155; 1 H. Bl. 222; 1 B. & P. 250; 5 East, 255.) it is never too late to take advantage of an irregularity like this, so long as the…
1Opinion of the Court
Curia.
"Without saying whether this writ is absolutely void, we are clear that it cannot be set aside at this stage of the cause. The defendant has taken a step, by which he is regularly in court, whether there be any process or not. We will not interfere, merely because the party acted in ignorance, that the process was void.
Motion denied.
2Cited by14 opinions
- The Monte A.District Court, S.D. New York · 1882
- State ex rel. Curtis v. McCulloughNevada Supreme Court · 1867
- Graham v. Cass Circuit JudgeMichigan Supreme Court · 1896
- Pardee v. SmithMichigan Supreme Court · 1873
- Hubbell & Curran v. DanaNew York Supreme Court · 1853
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