Heslep v. Brayton

The question which presents itself in this case is purely one of practice and has as yet been unsettled in this Court. I have taken occasion to consult with his Honor, Judge Hager, of the Fourth District Court, as to the best rule to adopt in these cases, as this decision will set at rest a point which has been somewhat doubted heretofore. We desire to establish some fixed rules for the future guidance of the bar in the absence of statute regulation. The Practice Act does not require the notice of a motion to be filed with the Clerk, the service thereof upon the adverse party I shall hold to be sufficient, and that until the five days elapse in which a party is required to file a statement on the motion, all proceedings must be stayed on execution. A party may enter his judgment, but no execution can issue until the five days elapse. Let the execution be set aside.