Van Bergen v. Palmer

Decided January 15, 1821

New York Supreme Court · decided 1821-01-15

DQWER: On the first day of th>e last term, the demandant was called; and again, on the quarto die post, and a day was given for her to appear and prosecute her claim on the last day of the term; and the demandant not appearing on that day, her default was entered, and a judgment of nonsuit entered thereon. now moved to set aside the default, and subsequent proceedings, and read affidavits. . that the demandant was regularly out of Court, and that the motion could not now be…

Cited by 1 later decisions — most recently January 1833

Good law ✅— No negative treatment on recordhow we know

Decided 1821-01-15

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Per Curiam.

¶1Unless the default of the demandant, on the last day of the term, had been excused, the judgment of nonsuit ought not to be disturbed. It appears, that the demandant’s attorney had died; and, without adhering to the strictness of the ancient practice, we think the facts stated in the affidavits sufficient to excuse the default.

¶2Motion granted.(a)

¶3 Vide Sacket v. Lothrop, 1 Johns. Cases, 249. Booth’s Real Actions, 92. Swift v. Livingston, 1 Johns. Cases, 173. The tenant, in a writ of right, cannot be called before the quarto die post; bht the demandant may be called on the first day of the term, and if he does not appear, his default may be entered; and if he does not appear on the quarto die post, and excuse his default, a- judgment of nonsuit may be entered, (Clobery v. Bishop of Exon, Carth. 173. Co. Lilt. 139, b.)