Pope v. Dinsmore — 29 Barb. 367

Majority

p. 367

Pope and others vs. Dinsmore and others.

Headnote

Where defendants decline to appear iipon the trial, and then general term, from the judgment rendered against them, wil exceptions, the appeal will he dismissed. . appeal to^the lotika-báéeBcS!

Although an objection that the complaint does not state facts constitute a cause of action need not necessarily be raised by demurrer, yet the question should, in some form, be raised and passed upon at special term or circuit, before the defendant should be allowed to appeal.

If a defendant, by any accident or misfortune, has been prevented from appearing at the trial, he should move to have his default opened; or perhaps he might succeed in a motion to set aside the judgment, on the ground that the record does not show a valid recovery. Per Pratt, J.

THIS was a motion, on the part of the plaintiffs, to dismiss an appeal brought by the defendants from a judgment entered against them by default.

The defendants in this case de-. dined to appear upon the trial, and have appealed to the general term from the judgment, without a case or exceptions, and a motion now is made, on the part of the plaintiffs, to dismiss the appeal. I am of opinion that the appeal should be dismissed.

It is claimed, on the part of the defendants, that an objection to the sufficiency of the complaint may be taken for the

p. 368

first time upon appeal. If that he so, the appeal cannot he dismissed, hut if the complaint he sufficient, the judgment should he affirmed. It is true that when the complaint does not state facts sufficient to constitute a cause of action, the objection need not necessarily be made by demurrer. But the question, in my opinion, should in some form be raised and passed upon at special term or circuit, before the party objecting should be allowed to appeal.

Under the code, the appeal to the general term seems to be provided for the review of actual determinations of the court at circuit and special term. By section 268 of the code it is provided, in trials by the court without a jury, that “for the purposes of an appeal, either party may except to a decision on a matter of law arising upon the trial, within ten days after notice in writing of the judgment.” It is then, in the same section, provided, when questions of fact or of law upon the evidence, are desired to be reviewed by either party, that a case may he made, and the section then contains this restriction : that the questions, whether of fact or of law, shall only be reviewed in the manner prescribed by that section, blow, it was clearly competent for the defendants to take, upon the trial, an objection to the sufficiency of the complaint, and an exception to the ruling of the judge, if adverse to them. But to allow them to reserve an objection of this character, to be made for the first time upon appeal, would he liable, I think, to great abuse, and contravene the manifest intention of the code.

If the defendants, by any accident or misfortune, have been prevented from appearing at the trial, they should move to have their default opened, or perhaps they might succeed in a motion to set aside the judgment, on the ground that the record does not show a valid recovery. But they should, I think, be required to bring the question, in some form, before the court at special term, in order to entitle them to appeal to the general term, from the judgment.

And this question has been substantially passed upon by the.

p. 369

court of appeals in Hunt v. Bloomer (3 Kern. 341) and Johnson v. Whitlock (Id. 344.) Those were cases of motions to dismiss appeals from judgments at general term, on the ground that no exceptions had been taken at the trial, and no case had been made or settled, and the motions were granted by the court. Now, if a party has the right to appeal upon the record alone, where no exception has been taken, and may, upon such appeal, take an objection to the sufficiency of the complaint, it was clearly improper in those cases to dismiss the appeals. The court should have examined the record, and if there was no defect found in the pleadings, have affirmed the judgment. These cases, therefore, may be deemed to overrule the cases in this court, cited upon the argument on behalf of the appellants.

[New York General Term,

May 2, 1859.

Roosevelt, Pratt and Ingra ham,. Justices.]

Appeal dismissed, with costs.