Hoagland v. Miller

16 Abb. Pr. 103

Opinion

Sutherland, P. J.

This case comes irregularly before the general term. It is not an appeal from a judgment. PTo judgment has been entered in the case. On the trial at the circuit, before a justice of this court and a jury, the justice dismissed the complaint without submitting the case to the jury; and the counsel for the plaintiff excepted to such dismissal. The justice then ordered the exceptions to be heard in the first instance at the general term upon a case containing the exceptions, and directed an order to that effect to be entered in the minutes of the clerk.

I know of no authority for such a proceeding. I do not see how, regularly, the general term can render any judgment in this case, and think there should be a new trial ordered, costs to abide the event, upon the ground that there has been a mistrial. But if it should be deemed that we can regularly render a judgment in the.case, then I am of the opinion that the judgment should be that the complaint be dismissed, on the ground that judgment on the foreclosure-suit, to which Ford was a party, was and is a bar to this action.

This ground is sufficient, without examining any other.

Glebke, J.—I think the first objection correct.

Ingbajbam, J.—I concur.

Judgment reversed, on the ground of a mistrial.