Clinton v. Myers , 43 How. Pr. 95 ( 1872 )

Balcom, J.

—This cause has been regularly noticed for trial at this term of the court, by tbe defendant’s attorney. But it is not on the calendar, for the reason that such attorney did not furnish the clerk with a note of the issue as required by section 356 of the Code. And no such note of issue has yet been furnished to the clerk. The question now presented is, whether the court may, in its discretion, allow the defendant’s attorney to furnish.the clerk with a proper note of issue, and have the cause entered on the calendar, according to the date of the issue. It is provided by section 174 of the Code, that the court may, in its discretion, u supply an omission in any proceedingand I am of the opinion, it is a proper exercise of discretion to allow the defendant’s attorney to furnish the clerk with a proper note of the issue in the action, and have the cause entered on the calendar. Leave to do this is granted him.

It is proper to add, that this motion was brought up on the first day of the term, and that such a motion would not be entertained on a later da,y.