Scranton v. Levy

4 Abb. Pr. 21, 1 Hilt. 261

Opinion

By the Court, Brady, J.

—The cause had been adjourned until April 25, 1856, at 11 a. h., and the justice gave judgment for the plaintiff prior to that time, under the impression that the action had been adjourned until 10 A. M. On that day, the judgment was opened, it is said, and the action tried in the usual manner. After the testimony had closed, the justice having discovered no reason why his finding should be altered, left the original entry of judgment as Ms judgment in the cause.

The defendant now insists, that the justice having entered Ms judgment could not open it, and that, therefore, his subsequent proceedings cannot be sustained.

Without passing upon the power of the justice to open a judgment rendered by him, it is sufficient to say that the first proceeding, it is conceded, was without jurisdiction and void, and was so regarded by the parties when the defendant appeared; and that the second proceeding, which was regular and formed the basis of the judgment appealed from, was acquiesced in by the defendant, whose appearance and submission conferred jurisdiction upon the justice, even if he had no right to treat his previous trial as a nullity.

* The judgment in his case was rendered on a trial of the action which was contemplated by the adjournment. Besides that, the objection should not, under the circumstances, have been taken, and would not be regarded, unless the duty of the court required its consideration. If the defendant desired to avail himself of the error, he should have appealed from the first judgment. He has waived technicalities, and must depend upon the merits. The merits are also against him.

[We omit the remarks of the court upon the merits.]

Judgment affirmed.

The statute provides “ that where any parties shall agree to enter an action, before any assistant-justice without any process, such assistant-justice shall proceed in the same manner as if a summons or warrant had been issued.”—2 Laws of 1813, 372, § 89.