Price v. Peters

15 Abb. Pr. 197

Opinion

By the Court.

*—Daly, F.

J.—A discharge under the Two-third Act must be pleaded as a defence to the action if the party had an opportunity of doing so; and if he had, and neglected to interpose it, the court will not afterwards, upon motion, relieve him against the judgment. (Mechanics’ Bank a. Hazard, 9 Johns., 392; Desobry a. Morange, 18 Ib., 336; Valkenburgh a. Dederick, 1 Johns. Cas., 133.)

The defendant Peters having obtained his discharge after issue joined, and before the cause was decided, should have applied to the justice under the 11th subdivision of the 61th section of the Code, for liberty to amend his answer by setting up the fact of his discharge. Having obtained it after the testimony was closed, but before the cause was finally submitted to the justice, he had a right to plead it. (West a. Stanley, 1 Hill, 69.) Instead of doing this, he offered the discharge in evidence as a defence to the action, and the justice refused to receive it. He was right in rejecting it. The defendant was not entitled to offer it in evidence, not having set it up as a defence. (Jackson a. Rich, 7 Johns., 194.)

The objection that the justice had not jurisdiction to render judgment in consequence of having adjourned the cause, with the consent of parties, from the court-room to his office, for the purpose of taking testimony, is a matter which will not he inquired into in a collateral proceeding like this: If it was error, and rendered the judgment void, the defendant’s remedy was to appeal and have it reversed.

Bo ground was shown for ordering a perpetual stay of proceeding upon the judgment as against Peters. He had an ample opportunity pendente lite to set up his discharge as a defence, and having neglected to do so, he cannot have the benefit of it now, upon a motion to stay the proceedings under the judgment.

The order below should be affirmed.

Brady, J.

The trial of this action in the court below was adjourned from the 19th to the 25th April, 1861. On the 23d April, the defendant Peters obtained a discharge from his debts, and on the 25th offered it in evidence. It was rejected by the justice, and the cause was on that day submitted without further testimony. The defendant did not plead the discharge, and, therefore, the justice was not bound, it would seem, to receive it in evidence. If it be otherwise, however, the defendant did not appeal, and the error committed has been waived. Where the defendant has an opportunity to plead the discharge, he will not be relieved on motion. (Palmer a. Hutchins, 1 Cow., 42; Baker a. Ulster C. P., 4 Johns., 190; Parkinson a. Scoville, 19 Wend., 150.) The cause not having been submitted, the defendant could have pleaded his discharge (West a. Stanley, 1 Hill, 69), and the plaintiff would then have had an opportunity to test its validity.

The alleged irregularity in conducting the trial, although it deprived the justice of jurisdiction, cannot avail the defendant on a motion of this kind. The proceeding supplementary is based upon a judgment, and that is a judgment herein which cannot be reversed on motion, although the error complained of be one for which the judgment would be reversed on appeal to this court. The defendant must seek some other mode to relieve himself.

The motion must be denied, but without costs.

Present, Daly, F. J., Brady and Hilton. J.J.