Salter v. Malcolm

1 Duer 596

Opinion

When a'Eeferee reports that nothing is due to the plaintiff, and it appears from his report that the case had not been heard before him, but that his decision was founded upon the default in appearance of the plaintiff and his. counsel on the day appointed for a hearing,—the proper judgment to be entered is a dismissal of the complaint, not an absolute judgment, as upon a verdict. The judgment ought no more to be an absolute bar in such a case, than in that of a nonsuit upon a trial.

So held by Dues, J., to whom the question was referred in the above case; Campbell and Bosworth, Justices, concurring.