Morehouse v. Yeager

An appeal from an order denying a motion made by the plaintiff to set aside an order theretofore granted by a justice vacating a previous order made by him.

An order was obtained ex parte requiring the defendant to file his answer within ten days, or that his defense be deemed abandoned. The affidavit on which this order was granted did not disclose the fact, that the action had already been tried and judgment entered thereon. Upon discovering this fact, the justice *307who granted the order upon application vacated it; but without prejudice to the plaintiffs, to make a motion upon notice to the defendant requiring the tiling of such answer. The plaintiffs did not avail themselves of this privilege, but moved before another justice to vacate the order which had been first made. The appeal is put upon the ground that the learned judge who made the first order, had no power to vacate it. All the facts were not disclosed when this first order was made entitling the applicant to have it granted. In such a case, there can be no question that the judge had the right to vacate it, and he did so without prejudice to the plaintiff’s right to apply upon notice for an order of like effect and get it. This he failed to do.

The motion must be denied with costs of motion below and on the appeal.

Sedgwick, J., concurred.