Stoyel v. Westcott

3 Day 349

Opinion

By the Court.

It appears from the record in this case/that Stoyel, one of the original defendants, was an inhabitant of the state of Rhode-Island; that judgment in the county court was rendered the term to which the action was brought, without any appearance on the part of Stoyel. or plea put in by him; and that he was in no way party to the cause, until after the same was appealed, and entered in the docket of the superior court. The proceedings of the county court were therefore void;

Footnotes

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(b) and the cause in the superior court was in the same situation as any other cause would be entered there without process. The proceedings and judgment of the superior court must, as a necessary consequence^ be erroneous, and ought to be reversed.

Judgment reversed.

Vide Stat. Conn. tit. 6- c. 1» s. 3. by which it is provided, that “ if the party against whom suit is brought, is not an inhabitant, or a sojourner, in this state, or is absent out of the same, at the time of commencing such suit, and doth not return béfore the first day of the court’s sitting, the judges of the court where such suit is brought, shall continue the action to the next court; and if the defendant doth not then appear, (by himself or attorney,) and be so remote, that the notice of such suit depending could not probably be conveyed to him rmitng the vacancy, the judges, at such next court, may further continue the. action to the court thence next following, and no longer, but may enter up judgment on. default after such continuance, or continuances.”