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10. Premature notice. ]— Where the statute or rule of court requires that notice be given of an act done, such as that a petition be filed or an order entered, and notice be given that it has been done, the notice must be subsequent; previous notice that the act will be done is ineffectual.51
Notice of intent to proceed irregularly imposes no obligation until some positive step in the cause, irregular and inconsistent with legal right, is taken.52
11. Combining several objects. ]— For convenience each distinct notice should be by itself so far as to enable it to be filed with the papers to which it pertains ; 53 but a notice is not vitiated because other objects are combined with it in the same paper.54
12. Ambiguous notice. ]— An ambiguity in a formal notice given in the course of litigation which leaves its meaning in doubt, is to be construed most strongly against the party who gave it; for it is his language, and if it fails to convey his meaning the fault is his and the consequences lie on him.55 This rule
51 Carr v. Boone, 108 Ind. 241, 6 N. E. Rep. 626 (holding service of notice that petition would be filed insufficient to give jurisdiction if direct attack were made that it is otherwise — at least in Indiana — on collateral attack, see paragraph 13, note l; Gallt v. Finch, 24 How. Pr. 193 (service of copy of decision before entry of order thereon, insufficient to limit time to appeal).
So a notice that is required to be given subsequent to the doing of a particular act or after the lapse of a certain time; if premature, it is invalid. As where the notice of a hearing was served before the return day mentioned in the writ, a motion to strike from the docket was granted. Stockton r. Garland, 14 Mich. 333; Miles v. Goffinet, 16 Mich. 280. 52 Vandenburgh v. Van Rensselaer, 6 Paige, 147.
Jones 1. Porter, 6 How. Pr. 286 (mistake of getting order in supplementary proceedings two hours before return of execution was actually filed, held amendable, or disregarded).
53 Wright v. Wright, 70 N. Y. 98. (Notice embodied in a stipulation which was returned unread — held ineffectual.)
64 Sharon v. Sharon, 68 Cal. 326, 9 Pac. Rep. 187, 192 (notices of several appeals).
But one notice of appeal from two separate orders (denying motion for leave to amend complaint, and to dismiss complaint without prejudice), is not sufficient; and was accordingly held sufficient cause for the dismissal of the appeal. Otherwise great confusion and inconvenience would ensue. Sweet t. Mitchell, 17 Wis. 125; S. P., People v. Center, 61 Cal. 191.
In Sharon 1. Sharon (above), the case of People v. Center was distinguished as one notice of one appeal from two orders, not two notices in one pa per. But the New York practice allows one notice of appeal by the same party from two decisions in the same action, if the case is such that they can be reviewed together. See APPEALS, vol. 2 hereof.
85 Carpentier r. Thurston, 30 Cal. 123; S. P., Potter v. Tuttle, 2 Wend. 254 Trefusing to set aside a default taken because notice of appearance was so tarelessly signed as to mislead the attorney into serving his papers on a stranger).
should be freely applied in the case of those notices which the party served has a right to have in a form such that he can rely upon them as future evidence of his right. In case of mere notices of motion and the like the question is whether an ambiguity has misled.
13. Alterations. ]-An alteration appearing on the face of a notice is not necessarily presumed to have been made after service. 56
14. Objections to sufficiency.]– In general, mere verbal inaccuracies, not in themselves misleading, will not invalidate the notice.57
The necessity of returning an insufficient notice is considered in connection with SERVICE; and the effect of appearing or neglecting to appear under an insufficient notice, under VOTIONS.
A party cannot usually take advantage of a defect in a notice given by or on behalf of himself;58 and one who waives insufficiency as to himself by appearing without objectings cannot usually object to the same insufficiency as respects others who ought to have had notice. 6o
15. Effect of holding sufficient.]—Where notice has been given, and the court has decided that it is sufficient to give jurisdiction, the judgment or order founded thereon is not to be disregarded nor impeached collaterally on the ground that the notice was not in fact adequate to give jurisdiction; but the error is one to be corrected, if at all, by a direct proceeding, as by appeal or inotion.61
56 Davis 1. Davis, 48 Vt. 502. (The place of taking a deposition named in the citation was “ Northfield, in the county of Dakota ,and State of Minnesota," but the word Dakota was at some time changed to Rice. Held, that an objection to the admissibility of the deposition was properly overruled.) But see Abb. Tr. Ev. (2d ed.) 501, and note.
57 As where the plaintiff's attorney noticed a cause for trial and inquest at " the next Circuit Court, etc., on the 3d Monday of November,” whereas the court was appointed to convene on the third Tuesday of that month. It appearing that the defendant's counsel was not misled by the error, the court denied the motion to set the inquest aside. Bander 0. Covill, 4 Cow. 60; S. P., Ins. Co. r. Kelsey, 13 How. Pr. 535 (1825).
A motion to set aside a default for want of a plea, on the ground that the notice endorsed on the declaration required the defendant to take notice of a rule to plead within days, was denied. No evidence that the defendant was misled. Douw v. Rice, 11 Wend. 180; Jackson v. Brownson, 4 Cow. 51.
In like manner, where a deposition was objected to in evidence because the notice of taking designated Connellsburg instead of McConnellsburg as the place, the judgment of the lower court in admitting the deposition was affirmed. Gibson 2". Gibson, 20 Pa. St. 9. S. P., N. Y. Fire Dept. 1. Buffum, 2 E, D. Smith (N. Y.), 511: Black r. Chicago, etc., R. Co., 18 Wis. 208.
58 Quinn v. Middlesex Electric Light. Co., 140 Mass. 109, 3 N. E. Rep. 204. 59 See Moore r. Empie, 17 App. Div. 218, 45 N. Y. Supp. 529.
60 Hingham, etc., Turnpike Corporation v. Norfolk Co., 6 Allen (Mass.) 353, 357.
16. Notice of motion.]— The rules applicable to notice of intention to make a motion or other application to the court are soinewhat peculiar, and therefore stated in connection with the subject of Motions.62
Notice; common form.
[Address, or other convenient identification.] Sir:
You will please take notice that [here set out with accuracy the facts of which notice is designed to be given.] Dated the day of ., 19
[Signature and address.] 64
FORM No. 87.
The same; in an action. [Title of court and cause.]
You will please take notice [etc., see preceding Form.]
[Yours, etc.] 6
[Address. ] To M. N., Esq.67
Attorney for [defendant]. 61 MeMullen v. State ex rel. Kendle, 105 Ind. 334, 2 West. Rep. 782. Notice posted that petition would be filed, under statute requiring notice that petition had been filed, was treated as sufficient as against collateral attack, because the court had decided in the proceeding that it was sufficient; s. P., Jones v. Jones, 36 Hun, 414 (process in divorce), and cases there cited.
62 Pp. 66, 117, and 120 of this volume.
63 See paragraph 5, page 195, 84 pra.
66 See paragraphs 1 and 4 and notes, su pra.
64 See paragraphs 1 and 4, supra, and notes.
67 See paragraph 5, supra.
FORM No. 88.
[Title of court and cause.]
Please take notice, that the plaintiff in this action appeals to the Appellate Division of this court, for the Department, from the order made by Mr. Justice — , at Special Term of this court, and entered herein on the day of ,19, [state its character, as vacating and setting aside the warrant of attachment herein issued in this action on the day of , 19 , and from the whole and every part of the said order.
This notice is served for the sole purpose of confirming a similar notice filed with the County Clerk and served on the defendant's attorneys by the attorneys for the plaintiff, on the day of
, 19 , and its purpose is to obviate any question as to the right of the plaintiff to serve such notice at the time last above mentioned, it having been objected that he had not then given security for costs, but having since given such security the said notice is hereby renewed and reaffirmed. [Date.]
[Signature and office address of],
Attorneys for Plaintiff. To [address]
Attorneys for Defendant,
Clerk of the Supreme Court. [For other forms of Notice, see Motions, supra; Chapter II, Article IV, on “Demands, Notices, etc., before suit;" and the various proceedings that require notice.]
Oaths. 1. Power to administer.
FORMS. 2. Mode of administering.
(89) Oath taken upon the Evan. 3. Overt act or oral declaration
(90) Oath taken by uplifting the 4. Religious belief.
hand. 5. Mental competency.
(91) Affirmation. 6. Jurat or record.
(92) Oath or affirmation of wit7. Irregularities.
ness, to be interrogated on
a particular subject. (93) Another form, where witness
is about to testify on a trial. 1. Power to administer.]— The power to administer an oath for the purpose of an affidavit is of statutory regulation. The power of the court or judge to do so may properly be exercised by the clerk acting in the presence and under the direction of the court or judge, for the clerk is but the hand and voice of the court.69
2. Mode of administering.]— The mode of administering an oath is usually prescribed by statute. In those cases in which strict compliance with the prescribed formalities is deemed essential, a statement of the rights of the party against whom an oath is offered may be useful.O
It is only when the affiant “ declares that he has conscientious scruples against taking an oath or swearing in any form," that he inav affirm. If such declaration is not made, the party has a right to require that a witness be sworn in some form. If the court or officer is satisfied that any peculiar mode of swearing in lieu of or in addition to laying the hand upon the gospels is, in
es See for the New York statutes, Code Civ. Pro., 88 842-844. 69 People r. Nolte, 19 Misc. 674, 44 N. Y. Supp. 443.
See also U. S. v. Nihols, 4 McLean, 23. (Deputy authorized by general rule to act as and for the principal clerk, and especially directed by the judge to administer an oath.)
State v. Knight, 84 N. C. 789. (Justice of peace by request of coroner, and in his presence, administered oath on inquest. Held, that he had no jurisdiction, and indictment for perjury was bad for stating the facts. Dictum that the oath was good, and perjury might have been assigned by alleging it to have been administered, as in contemplation of law it was, by the coroner.) S. P., Roberts v. Central Pass. Ry. Co., 1 Brewster (Pa.), 538; Oaks 1. Rogers, 48 Cal. 197.
70 This statement is according to the law of New York.
71 N. Y. Code Civ. Pro., $ 847, embodying former provisions of 2 R. S., 407,