Forbes v. Muxlow

On March 11, 1890, the plaintiff obtained an order of this court permitting him to serve upon the defendant a notice by mail to appoint another attorney in place of E. P. Wilder, Esq., who died on or about March 9,-1890. On April 2, 1890, a notice was served upon the plaintiff’s attorney that James M. Smith, Esq., appeared for the defendant as her attorney. On April 7, 1890, the plaintiff took an inquest at trial term in the absence of the defendant, and subsequently and on the same day-entered judgment against her. I am of the opinion that all proceedings on the part of the plaintiff herein were stayed for 30 days after the notice in question was served upon the defendant, (Code Civil Proc. § 65; Hickox v. Weaver, 15 Hun, 375;) and, as the stay had not expired when the inquest was taken and the judgment was entered, the same were irregularly taken and entered. It therefore follows that the inquest so taken and the judgment so entered must be vacated and set aside, with $10 costs to the defendant.