Kelly v. Brower

1 Hilt. 514

• Court: New York Court of Common Pleas
• Decided: December 15, 1857
• Status: Published

Opinion

-Daly, J.

The appeal is not brought for relief from a judgment by default or for error of law, but for error of fact in rendering judgment before the day to which the cause was adjourned.

Tho defendant, by joining issue on the merits, waived any defect in the process by which he was brought into court. Andrews v. Thorp, 1 E. D. Smith, 615.

The parties are in conflict as to the day to which the cause was adjourned. In such a case the return of tho justice, who is a disinterested party, and who has had an opportunity of inspecting tbc entry made by him upon the summons, must determine the matter. He returns that, when the cause was called, he found the entry on the summons of the day of adjournment to have ■ been altered and indistinct, and, upon the plaintiff represent! ng to him that it was adjourned to the 18th, he allowed the' plaintiff to take judgment; but that, after a particular examination of the summons, he was satisfied that the cause was adjourned to the 19th. We must, therefore, conclude that the cause was adjourned to that day, and, as judgment was given on the previous day, it must be reversed for error of fact.

Judgment reversed.