Murling v. Grote — 1 Hilt. 116

Majority

p. 116

Ferdinand Murling v. William Grote.

Headnote

where the justice disposed of the business before him, and a defendant who was waiting asked for the cause in which he had been summoned, and was informed by the justice that he had no such cause, and he thereupon left the court, held, that the plaintiff could not afterwards proceed with the cause in the defendant’s absence.

Appeal by defendant from a judgment of tbe First District Court, entered against Mm by default. Tbe facts appear in tbe opinion of tbe court.

tyUan M. Sniffin, for tbe appellant.

S. Bennett Ackerman, for tbe respondent.

In this case, on tbe return of tbe summons, tbe parties appeared, and after tbe justice bad called bis cases, tbe defendant’s counsel applied for this case, and was informed by the justice that he bad no such case, as all tbe cases bad been called and disposed of, and thereupon he left tbe court with bis witnesses. Afterwards the papers were found, and the case was adjourned to another day. The plaintiff’s attorney made oath that he had served, on the defendant’s attorney, a notice of the adjournment. This is denied by the defendant’s attorney, who states he had no notice of any adjournment. On the adjourned day the plaintiff took a judgment by default.

I am not satisfied that the justice bad any authority to proceed in the case after dismissing the defendant. On the contrary, after the defendant has appeared and been dismissed by the court, tbe safer course is to serve a new summons. If tbe practice is sanctioned which was adopted in this case, it will open a door to great frauds in tbe service of notices, .rom wMch no relief can afterwards be obtained, for want of power in tbe court below to open a judgment obtained by improper means.

Judgment reversed.