mention low the party to move to set aside the judgment." Hence, it is usual and proper, whenever it may be doubtful what relief the party is entitled to, after a statement of the particular objects of the application, to add a general clause, " or for such other or further order as the court may think meet to grant in the premises." The notice need not specify the place where the Need not motion will be made, but it is sufficient to designate the term; place. the places where the different terms are held being a matter of public notoriety." And notice for the next term, generally, without adding the month, is good; and if by mistake a wrong term be designated, as October term, when the next term is February, if this be so worded as not to mislead, it may be rejected as surplusage.78 notice. Motions, whether enumerated or non enumerated,79 must Eight days be noticed for the first day of term, by a notice of at least eight days; but if a regular notice of eight days be given for the term generally, this includes the first day, and is sufficient.81 And though notice must be given for a particular day, yet it does not follow that the motion can only be heard on that day; and the words "or as soon thereafter as counsel can be heard," usually inserted in notices, are unnecessary. Notices of non-enumerated motions must be accompanied Non-enumewith copies of the affidavits and papers on which such motions tions. are founded.as 82 rated mo ted motions. Enumerated motions may be noticed and brought on by Enumeraeither party, and when the notice is given by the party whose duty it is to furnish the case, demurrer books, error books, or other papers on which the motion is founded, the notice must be accompanied with copies of such papers. 84 80 Rule 48. 55. 31 1 Cowen. Rep. 230. 82 1 Johns. Rep. 143. 83 Rule 55. Excuse where notice not for first day. What will be considered sufficient excuse. A motion, though on the calendar, must be noticed for the particular term at which it is intended to be made; and a notice of a motion for a particular term, and that if not then made it will be continued on the calendar from term to term until it shall be made, is insufficient.85 Notices of non-enumerated motions, may sometimes be given for a later day in term; but in such case some sufficient cause must be shown and contained in the affidavits served 86 for not giving notice for the first day." Misapprehension of a rule or ignorance of a late decision, will in general be considered a sufficient excuse; but ignorance of the rule of court requiring eight days' notice, will not be received as an excuse for not giving sufficient notice. Forgetting the commencement of the term has been allowed as an excuse. 90 And where, from misapprehension, the attorney was not prepared with sufficient affidavits to support the motion, the court allowed him to give new notice and make the application on another day How objec- in the same term.9 tion made. Calculation of time. 91 The party who objects to the notice that it was not given for the first day of term, must appear and state the objection at the time when the motion is brought on, or he will be deemed to have waived the objection.92 Counter affidavits may be read as to the sufficiency of the excuse for not giving earlier notice.93 Notice of a motion to be made to the court is not of itself a stay of proceedings, but for this purpose a judge's order is requisite.94 The time required for the service of a notice is to be calculated by excluding from the computation the day on which the service is made, and including the day on which the notice expires; but where the last day is a Sunday, the party has the next day to comply with the exigency of the notice.101 of The contents of a notice may be proved by the production a copy sworn to as a true copy, or if no copy has been kept, by an affidavit of its contents.95 How con tents proved. 10 Rule 62. 95 3 Caines' Rep. 174. 13 John. Rep. 470. 9 Johns. Rep. 136. CHAPTER V. OF SPECIAL MOTIONS AND RULES. SECTION I. OF THE DIFFERENT KINDS OF MOTIONS, AND OF BRINGING ON AND Enumerated and non Special motions, so called to distinguish them from common motions, upon which common rules are entered, are those motions in which an actual application to the court is requisite. They must, as we have already observed, be brought before the court on a notice for the purpose, and if the opposite party do not appear to oppose, the party making the motion is entitled to the rule or judgment moved for, on proof of due service of the notice and papers required to be served by him.1 Kinds of motions.] Special motions are divided into enuenumerated. merated and non-enumerated motions. The former are so called because they are entered and numbered or enumerated upon the calendar or docket of the court, and are regularly to 1 Rule 46. be heard according to the order of that enumeration; whereas the other species of motions are not entered on the calendar, and are brought on without regard to priority. Enumerated motions are, Motions in arrest of judgment; tions are Motions arising on special verdict, bill of exceptions, case What moreserved at the trial, case agreed between the parties without enumerated, trial, demurrer to evidence or pleadings, writ of error or writ in the nature of a writ of error, comprehending the writ of mandamus; and, All motions to set aside a nonsuit, verdict, inquisition, or report, otherwise than for irregularity exclusively.2 Non-enumerated motions include all other questions sub- and what mitted to the court.3 non-enume rated. issue. Enumerated motions.] The party noticing an enumerated Note of motion,101 must, before the Tuesday next preceding the term, file in the clerk's office, at the place where the court is to be held, a note of issue, containing the title of the cause, the nature of the motion, the date when the question arose, together with the names of the attornies on record, of the respective parties; otherwise the motion cannot be entered on the calendar.4 tion in cer deemed to have arisen. In cases of special verdict, demurrer to evidence, bill of When quesexceptions, case reserved at the trial, and motion to set aside tain cases, a nonsuit or verdict, the question is deemed to have arisen on the day when the verdict in the cause was taken, or the nonsuit was granted. In cases of demurrer to pleadings, or writ of error, or writ in the nature of a writ of error, the day when the joinder in demurrer, or joinder in error, was received by the party demurring, or having assigned the errors; and in cases of return to any such writ, and no joinder of error on the record, 2 Rule 47. 3 Ibid. VOL. II. 10 101 As to notice, see ante, p 68 to 71. 4 Rule 49. |