Thayer v. Swift

A poor excuse is given for not entering the order to take testimony. Thirty days are allowed for that purpose, after the cause is at issue by a replication ; and the parties have sixty days to examine their witnesses in, after the order has been entered, and notice given to the adverse party; and the time may be enlarged once, on an ex parte application, if made before the sixty days have expired, and as much oftener, by giving notice to the opposite party, as the justice and equity of the case may require. Instead of pursuing this course, complainant’s solicitor adopted one to suit his own convenience; and concluded to disregard the rules of Court, and neglect examining his witnesses, until he has time to attend to it.

I do not think the excuse sufficient. He was not taken by surprise; he was not ignorant of the rules of Court; he has not availed himself of the first opportunity to make his motion; and complainant’s affidavit does not disclose what he expects to prove by his witness, that the Court may judge of the materiality of the testimony, and the merits of the application. It is the settled practice of this Court, in an affidavit of merits, to require the party to state what such merits are. 8 Paige R. 136. This complainant has failed to do. He says he has a good and equitable claim, and that he cannot safely proceed to a hearing, without the testimony of the witnesses menlion*386ed in his affidavit, as he is advised by his counsel. He does not state what facts he expects to prove by them, that the Court may judge of their materiality. It is the established practice, on applications to set aside a default regularly entered, for not answering, to require defendant to exhibit the answer hg proposes to file, or to state in his affidavit, fully, the merits of his defence; and, where complainant has neglected to take testimony within the time allowed by the rules of the Court, I see no reason why he should not be required to make as strong a case to set aside the rules of Court, as the defendant to set aside a default. Such has been the practice. I have so ruled in a number of cases, and see no reason for departing from it now. An affidavit of merits must disclose the facts, or what a party expects and believes he will be able to prove by his witnesses. Sea Insurance Company v. Day, 9 Paige R. 247.

Motion denied.