Lowther v. Crummie — 8 Cow. 87

Majority

p. 86

*Lowther and Huff against Crummie.

Headnote

Oh certiorari to a justice’s court. Crummie sued Low-t^er an^ Huff, in the court below, by summons, returnable the 9th of August, 1826, at 1 P. M. On that day the summons was returned personally served. The justice waiting one hour an(j 43 minutes after the hour mentioned in the summons, the defendants not appearing, then received the plaintiff’s declaration; and appointed the 16th of'August, aj 4 p_ M., to hear the proofs and allegations. About'20 minutes after the adjournment, the defendants appeared, and requested leave to plead. This was before the plaintiff had departed. At the hour appointed on the 16th, the defendant Lowther again appeared, and requested of the justice permission to plead, which, the plaintiff objecting, was denied, on the ground that the justice had no power to permit it. Lowther then withdrew; and the justice gave j'udgment for the plaintiff below.

The defendce’s court3 tho’ he omit to apturn of a summons, may yet plead at an adjourned day, costToftire adjournment and proceedings,

I. iSeelye, for the plaintiff in error,

cited 15 John. Rep 80 ; 16 id. 180 .

T. Lawyer, contra,

cited 11 John. 69 ; 4 Cowen, 502, 3; 19 John. 390 ; 20 id. 309.

The defendants below should have been permitted to appear and plead at the adjourned day, on

p. 87

paying the costs of the adjournment, and subsequent proceedings.^[1]

Judgment reversed.

[1] [1] The question how far a defendant should be permitted to make his defence at an adjourned day. when he did not appear at the return of process, has been passed upon in several instances. The decisions seem, however, to be conflicting. In one case it was said it would be too late for the defendant to be admitted to plead, and that he should be allowed only to give evidence in mitigation of damages. 11 J. R. 69. In another case, where the defendant omitted to appear at the return of a summons personally served, the Supreme Court decided that the defendant should have been permitted to appear and plead at the adjourned day, on paying the costs of the adjournment and subsequent proceedings. 8 Cow. R. 87. In a stilLlater case, the Supreme Court recognized and confirmed the decision, in 8th Cowen above cited, so far as relates to the right of the defendant to plead at the adjourned day, when he did not appear on the return of process. 1 Wend. 143 . Subsequently the same court held that if the defendant did not appear on the return of the summons and join issue, and the cause was adjourned, he would not be entitled, on the adjourned day, to plead and enter upon his defence; and the authority of previous decisions was doubted. 12 Wend. 150 .