Bunker v. Latson — 1 E.D. Smith 410

Majority

p. 410

William M. Bunker and another v. John W. Latson.

Headnote

The production, on the appeal, of a release of the claim upon which the plaintiffs have recovered judgment in the court below, executed by them before suit brought, forms no ground for a reversal, where the defendant has appeared on the trial by an authorized person.

The relief prescribed in § 366 of the code, would only apply where the defendant had failed to appear in the court below.

This was an appeal from one of the district courts, where judgment was obtained for the plaintiffs. The defendant, on the appeal, produced, for the first time, a release of the claim sued upon, executed by the plaintiffs before the action was commenced. A person appeared and defended the suit at the trial, for and with the authority of the defendant.

The judgment in this case was fully warranted by the evidence.

The person who appeared for the defendant, appeared by his authority, and the defendant is therefore concluded by the trial and judgment. A judgment once rendered in a justice’s court, under such circumstances, cannot be opened on appeal to this court, and a new trial allowed, upon the ground that the defendant neglected to produce certain evidence, which would have been a bar to a suit. The only relief is under the 360th section of the code, and that applies only in cases where the defendant has failed to appear and satisfactorily excuse his default. Here there was an appearance for the defendant, and it is not pretended to have been without his authority.

Judgment affirmed.