McCollum v. McClave

1 Hilt. 140

• Court: New York Court of Common Pleas
• Decided: May 15, 1856
• Status: Published

Opinion

Brady, J.

An inquest having been taken in this action in tbe Marine Court, whether properly or not, it was, on tbe defendant’s application, set aside, and the cause ordered to be placed on tbe calendar for 20th February, 1856. It was not placed on tbe calendar on that day, .and on tbe 23d February, 1856, from assurances of tbe plaintiffs’ counsel that the cause, then on the calendar, was properly there, and the defendant not appearing, the justice, by order, without proof, directed that the judgment before taken, and which was set aside, should stand, with $12 costs. The judgment must be reversed for two reasons, one of which is, that there was no adjournment from the 20th to the 23d February, and the justice lost jurisdiction; the other, that if the adjournment had been regular, the justice had no power to render judgment in the manner adopted. He should have heard the proofs and allegations of the plaintiff. When a judgment is set aside absolutely in any court, whether of record or limited jurisdiction, and the cause is thereafter continued, the plaintiff must prove his case in the usual way. A judgment Ipnce vacated is always vacated, and the defendant stands in reference thereto as if no action had been prosecuted against him.

Judgment reversed.