Ethridge v. Orcutt
New York Supreme Court
Motion by defendants to set aside replevin papers as void and for the return of the property replevied. It was claimed that the papers were void by reason of defects in the affidavit. The papers were served with the summons and the property taken by the sheriff January 12, 1887: He held the property until January 15, 1887, and then delivered it to the plaintiffs.
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Motion by defendants to set aside replevin papers as void and for the return of the property replevied. It was claimed that the papers were void by reason of defects in the affidavit. The papers were served with the summons and the property taken by the sheriff January 12, 1887: He held the property until January 15, 1887, and then delivered it to the plaintiffs. On the 25th day of January, 1887, the plaintiffs sold and disposed of the property, and January 31, 1887, the motion papers were served.
1Opinion of the Court
Contended:
1. That a motion to set aside proceedings for irregularity must be noticed at once and before any further proceedings-have been had in the action by either side. 1 Whit. Pr., 444; 4 Wait’s Sup. Ct. Pr., 632.
2. The motion not having been made until after the three days had expired in which to reclaim the property or except to the plaintiffs’ sureties, the motion is too late. So held in order of arrest under the old Code before its amendment. Barker v. Dillon, 1 Code R. (N. S.), 206; 9 L. 0., 310.
In American Tool Co. v. Smith (32 Hun, 121), the record shows that the motion was made…
2Cases cited2 opinions
- O'Reilly v. GoodNew York Supreme Court · 1864
- Depew v. LealThe Superior Court of New York City · 1855