Mitchell v. Menkle

1 Hilt. 142

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

Opinion

INGRAHAM, First Judge. —

In this case the defendant appeared and answered ; an inquest was afterwards taken against him, which, on his application, was opened on payment of certain costs, and a day was fixed for a new trial. On that day the defendant did not appear, and, on proof of non-payment of th£¡-costs before ordered, the court vacated the order granting a new trial, and confirmed the first judgment.

On this appeal we can only look at the return made by the justice. In those proceedings we find no error. The new trial was granted on certain conditions. Those conditions were not complied with, and the defendant was not therefore entitled to the benefit of the former order; the subsequent action of the court in reversing the former order and confirming the judgment was not erroneous, although perhaps it was unnecessary, as the defendant had not taken the necessary steps to make the order so vacated in any way operative.

I have noticed on this occasion the practice of the court below, because the justice has stated it in his return, although it is not to be understood as in any way committing us to the review of matters of pfactice merely, in that court, unconnected with the merits. In no case will we review such questions, resting solely in the discretion of the court below; and no questions involving the practice merely of that court can properly be matter for review here, unless they affect the substantial rights of the parties, and are returned to us by the justice as part of the proceedings in the cause.

Judgment affirmed.