Scranton v. Levy.

tiff's request, made an entry upon the back of the summons adjourning the cause until the 27th, but the plaintiff's witnesses having subsequently appeared, the entry of the adjournment was disregarded, and the justice, before 10 o'clock, proceeded with the cause, and rendered judgment. The mere entry of an adjournment upon the back of the summons, which was disregarded immediately after, and the cause proceeded with, amounts to nothing. It is sufficient to support the judgment, that it is disclosed by the return that the justice proceeded with the cause within an hour after the time named in the summons upon the return day. He proceeded to hear and determine the cause within a reasonable time, which was all that was essential to render his subsequent proceedings regular.

The testimony, it is true, was very general, but it was suffi cient to warrant the judgment.

If the appeal had been taken upon the merits, we might have relieved the defendant, as he excuses his default, and swears that he had a defence to the action, but that is not made one of the grounds of the appeal. The ground of appeal is for error in the judgment, and not for relief upon the merits. Judgment affirmed.

HORACE SCRANTON v. URIAH P. LEVY.

Whether the justice of a district court may open a judgment rendered by him on default through mistake, quære?

But if it be opened by consent of the parties, and the cause tried upon its merits, and on such trial a similar judgment rendered, it will not be deemed irregular, where it can be seen that the evidence justified the conclusion arrived at by the justice; and the power of the justice to open the default and proceed with the trial will not be inquired into on the appeal therefrom to this court.

APPEAL hy defendant from a judgment of the Sixth District Court. This was an action for services rendered by the plaintiff's assignors, in making fifty doors for the defendant. Upon

Scranton v. Levy.

the adjourned day, the justice, through mistake, granted the plaintiff a judgment by default, an hour before the time to which the cause was adjourned; but, discovering his mistake, he opened the default, and the cause was tried upon its merits.

Upon the trial, the defendant offered in evidence a contract made by James C. Curtis and Albion K. Hodgson, by which they agreed to trim and finish up two houses belonging to the defendant, for $240. He also introduced some evidence that they had not entirely completed the houses, together with receipts, signed by them, showing an over-payment. One of these receipts was for $50, and was expressed to be on account of the work of trimming the house "and making of fifty-two doors." The plaintiff's assignor testified, in rebuttal, that the agreement put in evidence and the receipts had been altered after they had signed them, that the words "and finish up" had been interlined in the agreement, and the words above, in italics, had been added to the receipt after execution, and offered evidence showing that they were prevented from finishing the work by the defendant. No evidence was offered contradicting this, and the justice thereupon allowed the judgment as rendered upon the inquest to remain unaltered. The defendant appealed. Asahel S. Levy, for the appellant.

Smith and Wells, for the respondent.

BRADY, J.-The cause had been adjourned until the 25th April, 1856, at 11, A. M., 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. When on that day the defendant appeared, the judgment was opened, it is said, and the action tried in the usual manner. After the testimony had elosed, the justice having discovered no reason why his finding should be altered, left his original entry of judgment as his judg ment in the cause. The defendant now insists that the justice, having entered his judgment, could not open it, and that therefore his subsequent proceedings cannot be sustained. Without

Wilkiming v. Schmale.

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 judg ment 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 this 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 avail himself of the error, he should have appealed from the first judgment. He has waived technicalities, and must depend upon the merits. These being against him, the judgment will not be disturbed.

Judgment affirmed.

LOUIS WILKIMING by his guardian WILLIAM RANDA, v. HENRY SCHMALE.

The mere fact that an action brought to recover for a debt due an infant is prosecuted by a next friend, instead of a guardian, will not render a judgment against him upon the merits void.

Such an error in a district court can only be corrected by an appeal. So long as the judgment remains unreversed, it is a bar to any other action for the same

cause.

APPEAL by plaintiff from a judgment of the Fourth District Court. This action was brought to recover wages claimed to be due Louis Wilkiming as clerk. The answer contained a plea of prior adjudication. The defendant, at the close of the plaintiff's case, produced a record of a former suit on behalf of the same plaintiff and for the same cause of action, by which it appeared

Wilkiming v. Schmale.

that an action was brought by the plaintiff in his own name, originally, for the same cause; that, on the trial, the objection to the proceeding on that account had been waived, and a next friend had been appointed for the plaintiff by consent, in whose name the suit was thereupon continued; and that, at its conclusion, the court rendered judgment for the defendant upon the merits. This record was objected to, upon the ground that no guaraian had been appointed in that suit for the infant. The objection was overruled, and an exception taken. The justice rendered judgment for the defendant, from which the plaintiff appealed.

James McGay, for the appellant.

Taylor and Johnson, for the respondent.

DALY, J.-It will not be necessary to determine whether the provisions of the Code respecting parties to actions apply to the justices' courts of this city or not, as it is wholly immaterial whether the plaintiff appeared in the former action by a guardian or by a next friend, as the error, if it was one, would not affect the validity of the judgment or render it void. It might be a ground for reversing the judgment for error in fact, and as the judgment was against the plaintiff, his remedy, if he appeared erroneously by a next friend instead of a guardian, was by taking an appeal and getting the judgment reversed. Maynard v. Downer, 13 Wend, 575; Bloom v. Burdick, 1 Hill, 130; Schermerhorn v. Jenkins, 7 Johns. 373; Gardner v. Holt, Strange, 1217; King v. Code, id. 413; Hamlin v. Hamlin, Bulst. 189. But as long as the judgment stood unreversed, it was a bar to any other action for the same cause.

Judgment affirmed.

Oaksmith v. Sutherland.

SIDNEY OAKSMITH and BISHOP R. KEEPLER v. JAMES SUTHERLAND.

The plaintiff has a right to discontinue, on payment of costs, at any time before the time to reply has expired, notwithstanding the interposition of a counter-claim in the defendant's answer.

APPEAL by plaintiffs from an order made at special term, allowing the plaintiffs to discontinue. The facts appear in the opinion of the court.

R. F. Andrews, for the appellants.

B. Skaats, for the respondent.

BRADY, J.-Before the time to reply had expired, the plaintiffs tendered the costs which accrue on a discontinuance before issue joined, and gave notice of discontinuance at the same time. Subsequently, and before the period to reply had elapsed, the plaintiffs gave notice of motion for leave to discontinue this action. The reasoning in Bockle v. Underwood (1 Abbott, 1) does not apply, therefore, to this case, the counter-claim not having been admitted by the plaintiffs. The notice of discontinuance and the tender of costs was all that the plaintiffs were required to do, if the right to discontinue existed. I had doubts whether, when a counter-claim was set up, the plaintiffs could discontinue without the defendant's consent, even within the twenty days allowed to reply, notwithstanding the case of Seaboard and Roanoake Railroad Co. v. Ward (1 Abbott, 46), but, on examination of the subject, I am convinced that the plaintiffs have the right absolutely. In this case I cannot understand how the defendant's rights can be prejudiced, inasmuch as the claim, if assigned, will be subject to the equities existing between assignor and debtor, and the debtor may be examined in his own behalf, if the assignor should be a witness for the assignee.

Order appealed from affirmed.