Lightstone v. Laurencel
Before: Heydenfeeldt
Synopsis
Appeal from the Third Judicial District, Santa Cerra County.
A notice by the respondent, dated September 5th, 1851, that the cause would be brought to hearing in this Court “at the next term, to be holden at, &c., on the first Monday of October next, at ten o’clock, A. M., or as soon thereafter as the same can be reached on the calendar,” was served on the attorneys for the appellants in the Court below, on the 10th of October, 1851. On the 20th of December last, the appellants failing to appear, on motion of the respondent, the judgment of the District Court was affirmed.
Justice Heydenfeeldt delivered the opinion of the Court. This
is a motion of the appellant to set aside the affirmance of judgment made at the last term, and restore the cause to the calendar, on the ground that he had no notice of trial, as was required by the rules of Court then in existence. He also files his affidavit, declaring that he had no actual notice.
We have before decided that we would not disturb a decision for the want of a formal statutory notice, where it appeared clearly that the party had actual notice. In this case, the papers disclose that the appellant did not have the notice required by the rules; the affirmance was for default of his appearance; and [107]it is nowhere shewn that he had actual notice. Besides, his affidavit is additional weight to satisfy us that he had not.
The judgment of affirmance must he set aside; and the cause restored to the calendar.
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