Booth v. Whitby — 5 Hill & Den. 446

Majority

p. 446

Booth vs. Whitby.

Headnote

Where a Court of common pleas ordered the trial of a cause to be postponed for thti term on the defendant’s application, upon payment of costs to the plaintiff within twenty days, or that he have judgment &c.; held that, unless the costs were paid pursuant to the order, the plaintiff might perfect judgment.

In such case the judgment should be entered and the record made up in the usual form of a judgment by default for want of a plea.

Error to the Seneca O. P. From the judgment record it appeared that Whitby sued Booth in the court below, and declared upon the common counts in assumpsit, serving a copy of a promissory note with the declaration. The defendant pleaded the general issue with notice of set-off. The cause was then continued to February term, 1842, when the defendant, as the

p. 447

record states, made a motion to put the cause over to the next May term, and the court ordered, that the cause be put over upon payment of costs to the plaintiff within twenty days, or that plaintiff have judgment 6pc. ' Then follows a suggestion that the costs were not paid within the time, although a taxed bill was served; and thereupon damages were assessed, and judgment rendered for the plaintiff for damages and costs. The defendant brought error, and, on alleging diminution, a certiorari issued, in answer to which the order of the court putting off the trial, the defendant’s default for not paying cpsts, and various other papers were returned.

C. A. Gibbs, for the plaintiff in error,

D. Wright, for the defendant in error,

This judgment is right in principle, but wrong in point of form. The court granted the defendant an unusual favor in giving him twenty days to pay the costs of putting off the trial, and might impose such terms or conditions as they thought proper. If the defendant did not like the terms, he should not have taken the rule. Having taken it, and then neglecting to pay the costs, it was very proper for the court to enforce the order by rendering judgment for the plaintiff.

But the judgment should have been entered and the record made up in the usual form of a judgment by default. It looks strangely to see a judgment by default, with .an assessment of damages by the clerk, after an issue of fact joined upon the record. The record should not have contained the plea, nor the history of the proceedings by which the plaintiff became entitled to judgment.

As the error only goes to the form of entering a right judgment, the plaintiff below may be relieved on terms. The judgment must be reversed, unless he amends, and pays the costs of the writ of error.

Ordered accordingly.