Jerry v. Blair — 62 A.D. 590

Majority

p. 590

Herbert E. Jerry, Appellant, v. Mary Blair and David Blair, Respondents.

Headnote

Appeal from, a,justice's judgment Try two defendants, as to one of whom the action was dismissed by stipulation — the appeal will be dismissed -— a new action in the County Court is not created by an appeal from a Justices Court.

On the trial of an action brought in a Justice’s Court against two defendants it was stipulated'that the action should he dismissed as to one of the defendants and should continue between the plaintiff and the remaining defendant. The justice rendered a judgment in favor of the remaining defendant against the plaintiff. Thereafter a notice of appeal was served, stating that both the defendants appealed to the County Court from the judgment rendered “in . favor of the defendants against the plaintiff ” and demanded a new trial in the appellate court.

Held, that the appeal should be dismissed;

That there was no such judgment as the one from which the appeal purported to be taken, and that the defendant, as against whom the action had been dismissed, had no right of appeal;

That the service of the notice of appeal did not operate as the commencement of a new action in the County Court.

Appeal by the plaintiff, Herbert E. Jerry, from an order of the County Court of Clinton county, entered in the office of the clerk of the county of Clinton on the 1.8th day of December, 1900, denying the plaintiff’s motion to dismiss an appeal to the County Court from a judgment rendered by a justice of the peace.

This action was brought in a Justice’s Court to recover for goods sold and delivered and accounts assigned to the plaintiff of the value of $175, less $150, the value of services rendered by the def endants.

The answer contains a general denial, a plea of misjoinder-of parties defendant and a counterclaim in favor of ’the defendant Mary ■ Blair for $100 for services rendered. .

p. 591

On the trial it was stipulated that the matters litigated are between the plaintiff and the defendant- Mary Blair, individually, and, by consent of the parties, the action was dismissed as to the defendant David Blaff and continued between the plaintiff and the defendant Mary Blair.

On June 13, 1900, the justice rendered a judgment in favor of the defendant Mary Blair against the plaintiff for fifteen dollars and thirty-one cents damages, and four dollars and seventy-five cents costs ; total, twenty dollars and six cents.

On June thirtieth a notice of appeal in an action entitled “Justice Court, Herbert E. Jerry, Plaintiff, against Mary Blair and David Blair, Defendants,” was served by the defendants, stating that the defendants Mary Blair and David Blair appeal to the County Court of Clinton county “from the judgment rendered in the above entitled action in favor of the defendants against the plaintiff, June 13,1900, for 20 and 6/TOO dollars damages and costs and demands a new trial in the appellate court.”

On December first the attorney for the defendants served a notice of trial for December eighteenth and thereafter the attorneys for the plaintiff, specially appearing for the motion, served notice of motion for that day to dismiss the pretended appeal.

From the order denying that motion this appeal is taken.

Samuel L. Wheeler, for the appellant.

E. S. Haff, for the respondents.

The denial of the motion to dismiss the appeal was error. There was no such judgment as the one from which the appeal purports to be taken. Concededly, the action brought in the Justice’s Court against the respondents jointly was, by consent of parties, dismissed and discontinued as to the defendant David Blair and continued as against the defendant Mary Blair, in whose favor, alone, judgment was rendered by the justice.

The defendant’s counsel contends that the service of the notice of appeal was the commencement of a new action in the County Court; that the action which in the Justice’s Court was discontinued as against David Blair was revived by the appeal as against

p. 592

him. This is unsound. The Code of Civil Procedure does not provide for the commencement of an action in the County Court by an appeal, but rather for the transfer to that court of an action in which a judgment has been rendered in a Justice’s Court. The new trial in the County Court is on the issues formed by the pleadings in the Justice’s Court, and the parties are the same as they were when the judgment was rendered.,

David Blair had no right of appeal. He had*ceased to be a party to the action and was not “ aggrieved by the judgment.’’ (Code Civ. Proe. § 3045.)

The disposition of the motion by the County Court is an injustice to the plaintiff, who, by an offer to compromise, under section 3010 of the Code, could have protected himself against the costs of a trial in the County Court if the defendant Mary Blair had appealed from the judgmeút rendered; whereas, under- the decision'made, the new trial would inevitably result in costs against him, as he has no claim against the defendants jointly.

If the counsel for the defendants, on the motion to dismiss his appeal, had asked for relief by reason of any mistake or inadvertence of his, that court would undoubtedly have permitted an amendment of the notice of appeal. But no such relief was asked for. He there insisted, as he does here, that "his practice was regular, and he must accept the consequences.

The order appealed from should be reversed, and the motion to dismiss the appeal should be granted.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.