Saxton v. Dodge

James C. Smith, J. The motion is based on an alleged irregularity in the proceedings on the part of the plaintiff, and is also addressed to the discretion of the court. The alleged irregularity is the want of due notice of trial. But the notice served on Mr. Sittser, the surviving attorney of the defendants, after the death of his partner, was regular and sufficient. The plaintiff’s proceedings were regular, and, if they were not, the motion to set them aside for irregularity is too late, more than a year having elapsed since the payment was rendered, and the defendants had notice of it. So far as the motion is addressed to the discretion of the court, the principal ground urged for it is that the defendant ought to have an opportunity to set up in his answer the discharge of his copartners. To this there are insuperable objections. In the first place, it is not probable that the matter alleged wpuld constitute a defense if it were pleaded. The compromise between Saxton and Dodge, though made in the state of Ohio, was made in view of the laws of this state, and there can be no doubt, that in consideration of all the circumstances attending it, its effect is to be determined by the laws of this state. The papers read on this motion show very satisfactorily that when the compromise was made, the partnership had been dissolved. That .being the case, the [478] compromise was valid under the laws of this state, and did not discharge Stevenson from his liability. (Laws 1838, chap. 257.) But waiving the question of the merits of the proposed defense, the delay and the conduct of the defendant with reference to the compromise, have been such that he ought not to be permitted to set it up at this late day, as matter of favor. His correspondence shows that he was informed of the compromise soon after it was made, and several months before the trial. Also, that he was informed of the trial and its result, in the fall of 1870. No satisfactory excuse is shown for his neglect to move in season. The claim that he was ignorant of the legal effect of the compromise, is no excuse. It appears very clearly, by his own letters, that when he was informed of the compromise, he acquiesced in it, and executed certain promissory notes with the intention of delivering them to Saxton for the purpose of carrying out the compromise. Afterwards he recalled the notes, and declined to deliver them, on the sole ground that he was unable to pay, and, as late as the 26th of September, 1870, he wrote to plaintiff, promising to pay him when able. That letter was written several days after- the causes were noticed for trial, and from its tenor and other circumstances, disclosed by the papers, it is apparent the defendant was informed of the fact that the causes had been noticed when he wrote the letter. In short, the case looks as if the defendant, having full knowledge of the compromise and of the plaintiff’s proceedings in the action, made up his mind that it was useless to defend, as he was unable to pay, and the plaintiff would be unable to collect any judgment he might recover. In addition to all this, is the circumstance that an action in equity has been commenced against Stevenson and others, to enforce the judgments, in which action Stevenson appeared and joined issue, as long ago as in November, 1871. Motion denied, with ten dollars costs.