Deland v. Richardson & Richardson

4 Denio 95

Opinion

By the Court, Bronson, Ch. J.

Assuming that all was regular, as against both of the. defendants, down to, and including the adjournment to the 15th of October, still as neither of the parties appeared on that day, the suit was discontinued, and out of court. The oath administered to Mr. Sweet on the 10th of October—a day to which the cause did not stand adjourned— was extra-judicial; and consequently no authority was shown for his appearing at that time on behalf of either of the parties. (Fanning v. Trowbridge, 5 Hill, 428; Lester v. Crary. 1 Denio, 81.) As the defendants did not appear in January, they have not waived the objection.

It is of no consequence that the common pleas gave a different reason for reversing the judgment, so long as the reversal was right in. point of law.

Judgment affirmed.