1 Wend. 101 | N.Y. Sup. Ct. | 1828
By the Court,
The proceedings in relation to the vacatur of the judgment of 1816, were wholly irregular. The defendants in the original suit were entitled to personal notice of the application to vacate the judgment. Service of notice in the clerk’s office, of proceedings after judgment, cannot be considered as due notice to a party. The defendant now before the court was also entitled to notice; for, although he could not be directly affected by the enforcement of that judgment, inasmuch as he had not been arrested, and therefore might be said not to be a parly to the record, still he is a party in interest, and is entitled to be heard. Besides, the plaintiff having waited more than five years to apply for a vacatur of his judgment, was not entitled to make that motion. The rights and responsibilities of the defendants had become irreversibly fixed, as a writ of error could not be brought. The defendant now before the court has, therefore, an interest in maintaining that judgment. The motion is granted, with costs.
