Colden v. Knickerbacker

2 Cow. 31

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: September 15, 1823
• Status: Published

Opinion

The Chancellor.

All the proceedings in the suit in the Supreme Court being returned, it appears that judgment was entered against the defendant by default, and that the proceedings passed through the offices of the Supreme Court, silently, in respect to the Judges, who were never asked to correct any irregularity, or to afford any relief to the party, who now assigns errors in those proceedings. The writ of certiorari issued, in order to bring into this Court all the proceedings not stated in the record, required any affidavits used on a motion to set aside the default, and any rules or orders actually made by the Supreme Court thereon ; but no such affidavit, rule, or order, is returned. The plaintiff in error, having made no application whatever to the Supreme Court, for any redress, now asks this Court to reverse the judgment thus entered against him. The Judges of that Court not having, in fact, decided any question in the cause, have not given reasons upon this occasion.

If a defendant, making no defence in the Supreme Court, suffering a judgment to be entered against him by default, and making no application to that Court for any redress, might come before this Court and ask the same redress which that Court might have afforded, this Court would become, in effect, a Court of original jurisdiction, and would be employed in deciding questions which the Supreme Court had never determined. Such a course of proceeding would be inconsistent with the constitution, and pregnant with great mischiefs. The jurisdiction of this Court is merely appellate. It is a jurisdiction to re-examine and re-judge ; to cor rect erroneous decisions actually made; to affirm, reverse, or alter determinations made by Judges, who may give, and are bound to give reasons for their determinations. It is not a jurisdiction to determine, in the first, instance, causes or questions which have not been submitted to the decision of other Courts. This separation of jurisdictions it is our duty to maintain. He who comes here to complain of errors must show not merely the formal proceedings which in a general course of practice may take place, without the knowledge of the Judges, and without any direction from the Court, in file particular cause, but he must also show some judgment or some decision, upon a question actually presented to vthe Judges for their determination.

The casi stated.

Jurisdiction of this court is

Writ of error upon a judgment by default dismissed.

In this case, the plaintiff in error, not having submitted to the Supreme Court any of the objections which he now urges here, and not having made the least effort to obtain the decision of that Court, upon any one of those objections, he is not entitled to be heard in this Court. The proper disposition of such a case is, I conceive, not to affirm or reverse the proceedings, but to dismiss the writ of error.

Bowker, Bowne, Bronson, Cramer, Dudley, Bar'Ll, Greenly, Hunter, Porter, Thorn and Wheeler, Senators, concurred.

Sudam, Senator. This cause comes before the Court on a writ of error to the Supreme Court, and all the supposed errors assigned by the plaintiff’, (except the 5 th,) are those existing in the interlocutory procee lings in the Court below, and do not appear in the record. These proceedings (the •'apiqs, declaration, &c.) have been brought into this Court, by a writ of certiorari, and three questions are presented for its consideration.

The questions presented.

1. Whether this Court on a writ of error will take cognizance of mere irregularities in the Court below, which might be corrected there.

2. Whether this Court will sustain a writ of error to the Supreme Court, when the judgment in that Court has been permitted to be taken by default, the error assigned appearing on the face of the record.

3. When the assessment of damages by a Clerk of the Supreme Court, on a declaration containing a count on a promissory note, and the money counts, is authorized by our statute.

I am satisfied that this Court ought not to take notice of mere formal defects in the proceedings of the Supreme Court. (Cheetham v. Tillotson, 4 John. Rep. 499.) It is for that Court to redress injuries which may result from a violation of its rules or practice, and it could not be tolerated that judgments in that Court should be reversed here, for mere mistakes in form, and in no wise affecting the merits of the controversy.

This court will not notice mere formal defects, arising from rules of practice in the supreme court.

2. The second question—whether the Court will sustain a' writ of error in the Supreme Court, on a judgment by default in that Court, deserves to be seriously considered.

Whether error lies upon a judgment by default.

This point is presented by the counsel for the defendant in error, as a preliminary objection, and they contend that the writ of error ought to be quashed.

Is made a preliminary objection.

In support of their position the counsel cited the case of Gelston & Schenk v. Hoyt, (13 John. 561.) In that cause the plaintiff below had demurred to two of the special pleas put in by the defendants, who joined in the demurrer, but declined arguing the demurrer before the Supreme Court, when the cause was called on, and permitted a judgment on the demurrer by default. That case differs essentially from the one now under consideration. The party had made his defence. He was in a situation to have taken the judgment of the Supreme Court upon the very question which he attempted to discuss in this Court, and he was very properly told it was an established rule, that a point waived by him in the Court below could not be open to discussion in this Court. He had himself abandoned that ground, and by this means misled his adversary, and deprived him of rights which the Supreme Court could have afforded him, had the demurrer been overruled. It was a voluntary abandonment of a point on which it was in his power to have taken the judgment of the Supreme Court, and if not satisfied, then to call for the opinion of this Court. So, also, in the case of Sands v. Hildreth, (12 John. Rep. 493.) There the cause had been regularly set down for a hearing on bill and answer, and upon notice to the party, -the appellant did not appear, but suffered a decree to pass against him by default. This Court dismissed the appeal, because he had voluntarily permitted a decree to pass against him, when he might have taken the judgment of the Chancellor on the merits of his cause. If he had taken his opinion, it might have been uni-necessary to resort to this Court. Not having done this, he was presumed to have acquiesced in the justice of the judgment pronounced by the Chancellor, and this Court would not aid him in a course of litigation which he had once concluded to abandon.

Cases cited to support it.

A party who, on hearing, or notice, voluntarily withdraws himself from the deliberate judgment of the court, should not be heard on appeal or error.

Preliminary questions of this kind are always addressed to the sound discretion of the Court, guided by principles which have heretofore, and ought in future to govern Courts of appellate jurisdiction; and I fully subscribe to the doctrine, that a party who has placed his cause in a situation to receive the deliberate judgment of the Supreme Court or Court of Chancery, aftd who, upon a hearing, on notice, voluntarily withdraws himself from the deliberate judgment of the Court below, and permits his adversary to recover by his default, is, and ought to be precluded from agitating the same points in this Court.

But this is not the plaintiff’s case.

But -the case of the plaintiff in error is not within the rule laid down in the cases cited, nor is it within that established in the case of Henry v. Cuyler, (17 John. 469.) The plaintiff in -error was prosecuted in the Supreme Court, and he did .not appear to the writ. He permitted the plaintiff below to perfect his judgment, and he now says that there is error in that record. I cannot subscribe to.the doctrine, that to. enable a party to maintain his writ of error, (which is a writ of right,) it is necessary that he should appear and liti gate the suit in the Court below. He may rest on the honesty and integrity of the plaintiff, and presume -that he will not enter a judgment for a greater sum than is justly due. But he may find himself egregiously deceived. A judgment may have been entered against him for $10,600, when only $100 was due. And shall it he said that,, in such a case, he cannot take advantage of the errors of his adversary, to reverse an unjust recovery ? This may he stating an extreme case, but a moment’s reflection will suggest a variety of cases in which the greatest injustice might be effected, and the injured party without a remedy, unless his writ of "error is secure to him. If he appears in the suit below, he then takes into his own hands the estimate of his rights. If he waives them, it is his own act, and he ought to be concluded. But if he trusts to the plaintiff, if he does not place any obstacles in his way to a speedy recovery, and he afterwards finds that the plaintiff himself has so conducted the suit, that in judgment of law his proceedings are erroneous, he is, in my opinion, entitled to the judgment of this Court upon the record.

Upon the face of all our records the judgment recorded is that of the Court: and I can see no constitutional objection to sustaining this writ of error. A judgment by default is as much the judgment of the Court, as that on a verdict, or after argument on a case made. The words of the constitution are, (Art, 5, s. 1,) “ And when a writ of error shall he brought on a judgment of the Supreme Court, the justices of that Court shall assign the reasons for their judgment."

A judgment by default is as much a judgment of the court as if rendered on a verdict.

Where is the difficulty in the Justices of the Supreme Court assigning the reasons of their judgment ? In the case of Gelston v. Hoyt, before cited, Chief Justice Spencer assigns, as "the reason for the judgment, that “ when the cause was called, (meaning the issue joined on the demurrer,) the defendant’s counsel appeared and declined to argue. Whereupon judgment was given for the plaintiff, on the defendant’s counsel declining the argument.” Upon these reasons, assigned by the Chief Justice, it appeared the plaintiffs in error had waived, in the Court below, that part of their defence which was embraced by the demurrer, and this Court justly held them to it.

And the su preme court may assign reasons for it.

In the case now before the Court, on the 5th error assigned, (which is the only one appearing on the face of the record) there could be no difficulty in assigning the reason why the Court referred the matter to their Clerk, to assess the ¿|amages_ in tile act (1 R. L. 134, s. 7) organizing this Court, and regulating the course of its proceedings, it is dedared that this Court shall “ examine all such errors as shall be assigned or found in such record, or in any process or proceedings concerning the same, and call upon the Judges of the Supreme Court to assign the reasons of such judgment.”

Writ of orror not confintualiy argued courkSUpieme

I cannot discover, either in the language of the consti'cution, or in the words of the statute, that the writ of error . can be supported in those .cases only which are actually argued before the Justices of the Supreme Court.

Cases of great hardship and injustice might arise, in which the party would be without a remedy, unless it be true that a writ of error to the Supreme Court can be maintained on a judgment or decision of that Court upon interlocutory proceedings, (such as motions to set aside judgments for irregularity, &e.)

nothin general^ lie upon a dequestion0” of practice, arómg upon amda/it inthesupreme court,

^ ^ understand his honor the Chancellor, his opinion is, that such would be the proper course, and it may be supposed that he is supported by the judgment of this Court, in the case of Clason v. Shotwell, (12 John. Rep. 31.) • . . x iy I concur in the opinion of the Court on the very point necessarily decided in that cause. It went far enough to reach that individual case, which formed an exception to the general rule. But I must, dissent .from the reasoning which would seem to go beyond the case then under consideration. This Court has never, as yet, said that a writ of error can be brought upon the opinion of the Supreme Court on a case presented to them by affidavits, and arising out of the practice of that Court, and I trust ■ they never will so pronounce the law.

Error was brought m this judgment by Cheetham v. Tillotson, 5 John. 430.

I am entirely supported in my opinion by the case of Cheetham v. Tillotson, (5 John. Rep. 430.) That ivas a writ of error on a judgment in a Supreme Court, .by default and damages assessed on a writ of inquiry. The error alleged was, that the charges in the declaration were not libellous. The learned counsel. (Woodworth & Henry) who argued the cause, never raised a doubt as tp the jurisdic tion of this Court, though the excitement produced by that controversy was well calculated to elicit all technical objections to the writ of error. The judgment of the Supreme Court was reversed.

From a review of all the authorities, I am satisfied that the established rule of this Court is, to deny to a suitor the right of litigating questions here which he had placed in a situation to receive the judgment of the Court belo-w, and which he had, on the hearing there, voluntarily abandoned ; and that, with the exception of the case of Clason v. ¡Shotwell, this Court have never sanctioned a writ of error, to review the decisions of an inferior Court, pronounced on affidavits, and that this was a case sui generis, and ought not to be extended beyond the precise point there decided ; that the case now before the Court is within the authorities cited ; and that the writ of error ought not to be quashed for the cause assigned.

Rule of this court as to denying appeals &c.

This ease not within rule.

When a judgment is taken by default, the party puts himself upon the regular proceedings of the plaintiff) and he never can be said to waive that to which he never assented, or in which he never was an actor. Nor can this Court exclude a case of palpable error, (when such a case shall be presented,) merely because the defendant below did not appear in the suit. It would in my opinion, violate the first principles of justice, as well as the words of the constitution, and the law by which this Court is organized.

And why.

3. This leads me to the consideration of the 5th point made by the plaintiff in error—that the declaration containing a count upon a promissory note, and the money counts, the damages ought to have been assessed by a jury, and not by the Clerk of the Court.

General assessment of damages upon note and money counts, not error.

The decision of this question does not depend upon the English authorities. By the 15th section of the “ act for the amendment of the law, and the better advancement of justice,” (1 R. L. 522,) the Court is authorized, in certain cases, on a judgment by default, to refer it to their Clerk to assess the damages. By the 17th section, if the suit be on any bill of exchange, promissory note, &c., truly set forth in " the declaration, the execution of such bill or note, &c.; need not "be proven. By the 18th section the Clerk is author) zed to take proof and to reduce the testimony of witnes ses wr^nff > and, if required, to report the same to the Court. Now it is a well settled principle that a promissory note may be given in evidence under the money counts. So may the Clerk assess damages on an account stated. The assessment of damages by the Clerk being authorized by law, disposes of this point; for we are to presume, (after judgment,) that the necessary proof was given to him, to justify his report. Upon the coming in of that report, the judgment entered upon it is the judgment of the Court.

Our statute enlarges the English rale oí reference to the Clerk, and embraces cases in which it would, in England, be necessary to execute a writ of inquiry.

I am, therefore, of opinion, that the judgment of the Supreme Court ought to be affirmed.

For dismissing For affirming,’ 8.

ErWIN, LeFFERTS, Livingston, LyNDE, McInTYRE, Kedfield and Wooster, Senators, concurred.

It was thereupon ordered, adjudged and decreed, that the writ of error brought in this cause be dismissed this Court, and that the plaintiff in error pay to the defendant m error his costs in defending the writ of error, to be taxed, and that the record be remitted, &c.