Hyperlawhypertext legal database Stocking v. Driggs 2 Cai. 96

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Stocking v. Driggs

2 Cai. 96 Court N.Y. Sup. Ct. English

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Majority

p. 96
Stocking against Driggs.

Headnote

If issue be joined before a justice, a trial had, and the judgment be rendered, it ought to specify it to have been on “hearing the proofs and allegations," or it will be bad on error brought.
Error on a certiorari upon a judgment in a justice's court.
From the return it appeared that the action below was brought against the now plaintiff, as the maker of a promissory note for 20 dollars; that after a plea of non assump-sit, the defendant below prayed an adjournment, which being granted, the plaintiff Driggs appeared on the day given. The record then went on thus : “ And the defendant not appearing, although solemnly called, I the said justice proceeded on the producing the said note by the said plaintiff, and '"gave judgment for the plaintiff on said note, for the sum of, &c.
Williams, for the plaintiff.
The return shows that the justice proceeded -without examining any witnesses. This judgment is founded on the simple production of the note. This, in no court, is sufficient to entitle a plaintiff to recover, still less in that of a justice.
W. Van Ness, contra.
As the note was produced it must be intended it was proved..

The judgment ought to have been “on hearing the proofs and allegations” of the parties. 1 Rev. Laws, 497. The judgment must, therefore, be reversed, for it was error in the justice to give judgment till he had prooí of the note.[1]

Judgment reversed;

[1] [1] In a justices’ court the plaintiff must prove his case before he is entitled to judgment, even although the defendant makes no defence; nor can a plaintiff enter judgment on default of the defendant. Muscott v. Miller, 1 Code Rep. 123 ; Smith v. Falconer, 1 Code R. 120. Contra: see Everett v. Lish, 1 Code R. 71. As to justices’ power of entering judgment, see art. 8, tit. 4, ch. 2, part 3, Rev. Statutes; see Code 1851, § 53, [sec. 46,] p. 22; art. 8; Bromaghim v. Thorp, 15 J. R. 476; Martin v. Moss, 6 J. R. 126; Gale v. Chace, 3 J. R. 147; Hubbard v. Spencer, 15 J. R. 244.