Powers v. Seeley

16 N.J.L. 216

• Court: Supreme Court of New Jersey
• Decided: November 15, 1837
• Status: Published

Opinion

By the Court.

It appears by the transcript that the plaintiff below delivered to the Justice on the return of the summons, a state of demand, and the defendant also handed to him, what he calls in his record, a plea; but the defendant did not attend, and judgment was rendered against him, in his absence. The Justice in his return to the Certiorari, informs us that he has made diligent search for the state of demand and the defendant’s plea, and has not been able to find them, and cannot therefore certify them into this Court. We have then before us all the record and proceedings in the cause that remained in the Court below when we sent down our writ, and upon this record we cannot affirm the judgment, for it does not appear to the Court, that the plaintiff below, had any legal cause of action. Upon the authority of the case of

1 Penn. R. 162 (New Ed. 119.) As well as upon the reason of the case, the judgment must be reversed. The security of the defendant below, requires such reversal; for should he be sued again for the same cause of action, he could not protect himself by a plea of former recovery.

If the plaintiff below is prejudiced by a reversal of the judgment, he must seek his remedy against him whose official duty it was, to file and preserve the state of demand.