Scott v. Glenn
Before: Belcher
Synopsis
New Trial — Notice of Decision — Service — Notice of Intention. — Where the defendant in an action in which he filed a cross-complaint making the plaintiff and his alleged assignors parties defendants served a notice of the decision of the court in his favor upon the attorneys for the plaintiff and defendants to the cross-complaint, directed “to the plaintiff” and the “ attorneys of record, ” and one of the attorneys named accepted service thereof as “ attorney for plaintiff and defendants to cross-complaint, ” the notice must be treated as a notice to and accepted by all of the losing parties, and a notice of intention to move for a new trial, served and filed by the defendants in the cross-complaint after the expiration of ten days from the service of the notice of decision, is not served or filed in time.
Belcher, C. This action was commenced to recover a sum of money alleged to have been received by the defendant for the use and benefit of certain parties, who had sold and assigned the indebtedness to the plaintiff.
The defendant answered, and also filed a cross-complaint, making the plaintiff and his alleged assignors parties defendant, and asking for affirmative relief against them.
The defendants named in the cross-complaint answered thereto, denying most of its averments.
The case was tried by the court upon the issues raised by the pleadings, and the findings and judgment were, that the plaintiff take nothing by his action, and that the defendant have and recover the relief demanded in his cross-complaint.
The findings and judgment were filed on September 17,1891, and on the next day the attorney for defendant served upon the attorneys for the plaintiff and defendants to the cross-complaint a notice reading as follows: —
(Title of court and cause.)
“ To the Plaintiff, and Messes. T. P. Ryan and G. B.
Graham, Attorneys of Record.
“You will take notice that the court has rendered its decision and findings and judgment, and defendant’s memorandum of costs have been this day filed, in the above-entitled action.
“ Dated September 17, 1891.
“ J. P. Meux,
“ Attorney for G. R. G. Glenn.”
On this notice was indorsed an acknowledgment of service as follows: —
“ Service of the within notice is hereby admitted this eighteenth day of September, 1891.
“ Geo. B. Graham,
“ Attorney for Plaintiff and Defendants to Cross-complaint.”
[515]On March 21, 1892, the defendants in the cross-complaint served upon Glenn and filed in the court a notice of their intention to move for a new trial of the action, stating that the motion would be made upon a statement of the case to be settled and allowed by the court.
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