Merrill v. Grinnell
New York Supreme Court
The summons, by which the suit was commenced, specified the name of the county in which the trial was desired; but the complaint, which was afterward served, wholly omitted to specify the name of such county. The defendants obtained three several orders extending the time to answer said complaint, each upon an affidavit stating, in substance, that the defendants intended to answer the complaint.
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The summons, by which the suit was commenced, specified the name of the county in which the trial was desired; but the complaint, which was afterward served, wholly omitted to specify the name of such county. The defendants obtained three several orders extending the time to answer said complaint, each upon an affidavit stating, in substance, that the defendants intended to answer the complaint. The defendants now move to set aside the complaint as irregular, or that the same be amended by inserting the county of New-York as the place of trial.
1Opinion of the Court
Mitchell, Justice.
It is essential, for many purposes of the suit, that the place of trial should be clearly stated in the complaint. That determines where motions are to be made, as well as where the trial is to be had; both parties must be at a loss where to proceed until that is distinctly settled. The omission of a statement so important in its consequences is not like a mere irregularity, and the defendant must be entitled to have it amended in some way, even after an answer is put in. The obtaining of time to answer is not therefore a waiver of the irregularity. The statement of the name…
2Cited by1 opinion
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