McCullum v. McClare

3 Abb. Pr. 106

• 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 the Marine Court, whether . properly, or not, it was, on the defendant’s application, set aside, and the cause ordered to be placed on the calendar for February 20, 1856. It was not placed on the calendar on that day; and on February 23,1856, from assurances of the plaintiff’s 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 twelve dollars costs.

The judgment must be reversed, for two reasons, one of which is that there was no adjournment from the twentieth to the twenty-third of February, and the justice lost jurisdiction. The other is, 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 once vacated is always vacated, and the defendant stands, in reference thereto, as if no action has been prosecuted against him.

Judgment reversed.