Teller v. Willis

Campbell J.:

Where a writ of error is not brought until after two years from the date of judgment, we think it a more convenient practice, in a Court like ours, with no ready facilities for jury trials, not to require the defendant in error to plead the limitation, until there is some responsible showing that the plaintiff in error comes within some of the saving clauses. If upon a motion to dismiss for want of jurisdiction, made on the first reasonable opportunity, the plaintiff shows himself by affidavit to come within the exceptions, the Court can resort to such measures as may be found best, to have the question settled if disputed; while, if not disputed, no further delay will occur. We ■deem it our duty to discourage any practice which will render it necessary, before a hearing of the cause in error, to have a trial by jury of a preliminary issue, before another court, whose action upon such trial may itself be excepted to, — unless satisfied in advance that there is a real controversy, requiring such issue to be thus determined. We ■shall therefore regard a motion to dismiss as the proper form of objection, to a writ supposed to be barred by lapse of time.

The plaintiff in error having relied in good faith upon the English practice, which, for the reasons named, we do not deem adapted to the constitution of this Court, the motion will be regarded as continued until the last Tuesday of this month, to give him an opportunity of showing, *270 by affidavits, such, facts as are claimed to exempt him from the operation of the statute.

The other Justices concurred.

On the day named, plaintiff in error not appearing, the-case was dismissed. See same case, y^osi.