Beach v. McCann — 1 Hilt. 256

Majority

p. 256

Samuel D. Beach v. Michael McCann.

Headnote

On the day to which this action was adjourned, the justice was engaged in tho trial of another cause. Upon the statement of Hie plaintiff that the defendant did not intend to appear, he suspended that trial, and took testimony and rendered judgment in this ease. Shortly thereafter, and before the time usually allowed by the justice before entering judgment by default, the defendant appeared for the purpose of trying the cause.

Held, that Use judgment should be reversed, the inquest having been allowed out of tho usual time, in consequence of misstatements to tho justico by the plaintiff.

II seems, that the mere fact, that the justico suspended the trial of one cause to tako an inquest in the other, is no objection to tho regularity of the judgment entered on such inquest.

Appeal by defendant from a judgment of tbe Sixth District Court, taken by default. Tbe facts sufficiently appear in tbe opinion of the court.

William R. Stafford, for tbe appellant.

Van Antwerp and James, for tbe respondent.

The justice, on tbe day to which the cause was adjourned, was engaged in the trial of a cause, which, by consent of parlies, was suspended, and a judgment was rendered in this case, tbe defendant not appearing. He was .induced to take this course, on tbe assurance of tbe plaintiff that tbe defendant did not intend to appear. In five minutes there

p. 257

after tbe defendant’s counsel appeared, but whether the plaintiff had then left court or not, does not appear.

Whether or not it is regular for the justice to suspend on© cause and take up another, it is not material to decide in this case, although I hare no hesitation iu saying that, with the assent of parties engaged iu the first cause, I can see no ground of objection thereto ; and such a course may tend to save time-to suitors, who otherwise would be compelled to remain until the previous cause was finished. Certainly the delay of tho defendant, in not attending to his cause at tbe time appointed, should form no ground for objecting to such a proceeding. It would be holding forth a reward to negligence or indolence.

But where such a course is induced by misstatements tó t|k> jusiiee, I think there can be no hesitation in saying that the proceedings should be reversed. In this case the justice certifies that it was his usual practice to wait thirty minutes, but that tho-plaintiff informed him that the defendant did not intend to appear, and that he took the inquest in consequence before that-time. The information was untrue; it led the justice to do what under other circumstances he would not have done, and the judgment rendered under such circumstances ought not to be' sustained.

Judgment reversed.