Majority
p. 140Henry McCollum and another v. John McClave.
Headnote
Judgment having been rendered in the plaintiffs’ favor in the Marine Court, upon the default of the defendant, it .was opened, and the cause was ordered to be placed on the calendar for 20th February. It was, instead, placed thereon on the 23d, and, the defendant not appearing on that day, an order was made that the judgment before taken should stand, with costs. Held, irregular,
p. 141
1. There being no adjournment from the 20th to tlo 23d, the court lost jurisdiction of the cause.
? The judgment having been absolutely set aside, could not be revived. The justice should have heard the proofs of the plaintiff) and rendered judgment thereon.
Appeal from a judgment of tbe Marine Court. On tbe return day of tbe summons in tbis action, tbe defendant failed to appear, and an inquest was taken and judgment was rendered thereon. On tbe defendant's motion, this judgment was after-wards set aside, and tbe cause was set down for trial for the 20th of February. Tbe cause was not put on the calendar for that day, but was placed on tbe calendar on tbe 28d of February. On that day tbe defendant failed to appear, and tbe plaintiffs’ attorney assuring tbe court that tbe cause was properly upom tbe calendar, tbe following order was made: P
“ Tbis cause having been tried on tbe 12th day of February, 1855, and a judgment rendered therein for $161.17, tbe defendant moved to have tbe default opened, and be permitted to defend, which was accordingly done, and defendant answered, and tbe cause was put on tbe calendar; no one appearing for defendant, ordered, that judgment stand as before taken, with $12.00 allowance, and $5.00 costs and disbursements.”
From tbe judgment entered on tbis order tbe defendant appealed.
S. B. Noble, for the appellants,
contended that the court lost jurisdiction by the failure to have tbe cause adjourned regularly from tbe 20th to tbe 23d of February, and quoted, in support of tbe position, Wight v. IfcQlcive, 3 E. D. Smith’s B. 316.
McOunn and Moncrief, for tbe respondent.
An inquest having been taken in this action in tbe Marine Court, whether properly or not, it was, on tbe defendant’s application, set aside, and the cause ordered to be placed on tbe calendar for 20th February, 1856. It was not placed on tbe calendar on that day, .and on tbe 23d February,
p. 142
1856, from assurances of tbe plaintiffs’ counsel that the cause, then on the calendar, was properly there, and the defendant not appearing, the justice, by order, without proof, directed that the judgment before taken, and which was set aside, should stand, with $12 costs. The judgment must be reversed for two reasons, one of which is, that there was no adjournment from the 20th to the 23d February, and the justice lost jurisdiction; the other, that if the adjournment had been regular, the justice had no power to render judgment in the manner adopted. He should have heard the proofs and allegations of the plaintiff. When a judgment is set aside absolutely in any court, whether of record or limited jurisdiction, and the cause is thereafter continued, the plaintiff must prove his case in the usual way. A judgment Ipnce vacated is always vacated, and the defendant stands in reference thereto as if no action had been prosecuted against him.
Judgment reversed.