Chase v. Evoy

New Trial—Statement—Dismissal of Motion.—The defendant’s attorneys, upon receiving notice of the decision of the Court against them, and before the filing of the findings, served and filed a notice of intention to move for a new trial, but did not file a statement until more than forty, days thereafter, and the Court upon that ground dismissed the motion for want of prosecution.

Held, That as the motion could never be heard there was no error in dismissing it, although an order denying the motion might have been equally proper.

Complaint—■ Pleading—Uncertainty—Demurrer—Defects in Pleading Cured by Judgment—Action against Administrator.—In an action against an administratrix, the complaint alleged that the plaintiff duly presented her claim to the defendant as administratrix, which claim contained a copy of said promissory note, and was duly verified by the oath of the plaintiff in the form prescribed by law.

Held, That if any objection could be raised to this averment, it was that it was not sufficiently definite and certain, and that this defect could not be taken advantage of by a general demurrer, and a fortiori would not be fatal to a judgment for the plaintiff in the absence of any demurrer or averment in the answer that the claim was not supported by proper evidence.

Counterclaim—Surety—Defense.—In the same action (being upon a joint and several promissory note executed by C., B., and E., the defendant’s intestate), the defendant pleaded' that E. and B. signed a note as sureties of C.; and that after the execution of the note and prior to the commencement of the action, the plaintiff became indebted to C. in the sum of two thousand and fifty dollars and sixty-seven cents, and that upon a suit being threatened by the plaintiff against B., C. had transferred to B., for the benefit of himself and his co-surety, the said debt, in order that it might be pleaded as a counterclaim. Thereupon the Court made an order that C. and B. should be permitted to appear and file answers in the action, which they did; but afterwards, in its conclusions of law, the Court held that C. and B. were not necessary parties, and rendered judgment against the defendant for the full amount of the note.

Held, That the facts pleaded did not constitute a counterclaim in favor of the defendant; held, further (admitting that the judgment could not be susstained, if C. and B. were in any sense parties to the action), that they had never become parties, and that, although the proceedings had in regard to them were irregular, they did not constitute error of which the appellant could complain.