Whipley v. Dewey
Before: Cope
Synopsis
Where plaintiff moved for a continuance, which was refused, and he thereupon took a voluntary nonsuit, with leave to move to set it aside upon affidavit, and two days afterward (January 5th) gave defendant notice of his intention to make the motion as soon as the affidavit for that purpose could be procured, and the term expired on the last day of that month without any additional steps being taken : Held, that although the order permitting plaintiff to move to set aside the nonsuit preserved all his rights in the proceedings, in legal effect it amounted only to permission to move for a new trial, and the statute in relation to new trials not having been complied with, the Court lost all jurisdiction of the matter upon the expiration of the term.
Cope, J. delivered the opinion of the Court Field, C. J. concurring.
When this case was called for trial, the plaintiff moved for a continuance, which was refused, and he thereupon took a voluntary nonsuit, with leave to move to set the same aside upon affidavits. Two days afterwards he gave notice of his intention to make the , motion as soon as the affidavits for that purpose could be procured. This notice was given on the fifth of January, 1860, and the term expired on the last day of that month, without any additional steps being taken. The order permitting the plaintiff to move to set aside the nonsuit preserved all his rights in the proceedings, but in legal effect it amounted to nothing more than a permission to move for a new trial, and it was necessary that the provisions of the statute in relation to new trials should be complied with. This was not done, and upon the expiration of the term, the Court lost all jurisdiction of the matter.
The order setting aside the nonsuit and granting a new trial is reversed.
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