Hubbard v. Spencer — 15 Johns. 244

Majority

p. 244

Hubbard against Spencer.

Headnote

Where a cause in a justice’s court having been adjourned, became discontinued, by the non-oppearance oftne plaintiff at the , , adjourned day, and more than a month after, a person who had been authorised by the defendant to appear for him at the adjourned day, and confess judgment, came before the justice, and without the Knowledge of the defendant, confessed a judgment for the plaintiff, as of the day to which the cause Was adjourned, it Was held, that this judgment being vóid, the defendant might avail himself of the Irregularity in an action Upon iU

IN ERROR, on 'certiorari to a justice’s court.

The. defendant in error brought an action of debt in the court below against the plaintiff in error, on a judgment rendered by another justice in favour of the former against the

p. 245

latter. Moss, who gave the judgment, testified on the part of the plaintiff below, that Hubbard, the defendant below, had been brought before him on a warrant at the suit of Spencer, the plaintiff; that the cause was adjourned until the 30th of December, 1815, on which day neither of the parties appeared, nor any person on their behalf; that in February next, thereafter, the plaintiff appeared before him as of the day to which the cause had been adjourned ; that one Sherrill was- introduced as a witness, who Swore that previous to the 30th of December, Hubbard', the defendant, authorized him to confess a judgment in favour of the plaintiff, at the time to which the cause had been adjourned: that Sherrill, on being questioned, said, that he thought his authority to confess the judgment extended to the present time, and that he, therefore, confessed a judgment before the witness for 17 dollars and 88 cents, with costs, and that the witness entered the judgment as of the 30th of December, preceding. This was the only testimony given; and it did not appear that the defendant ever had any knowledge of the judgment before Moss, until the trial in this cause. The justice who tried this cause, gave judgment for Spencer, the plaintiff below, for the amount of the judgment before Moss, with costs.

delivered the opinion of the court. The suit originally instituted before Moss was unequivocally discontinued by the non-appearance of the plaintiff in that suit, on the 30th of December, 1815 ; and the parties then stood in the same situation as if it had never existed. According to the testimony of Moss himself, the judgment before him was entered nunc pro tune, nearly two months after the discontinuance of the suit; and the only colour for that extraordinary proceeding was, that the defendant had authorized his attorney, Sherrill, to appear at the adjourned day, and confess a judgment on the suit then pending, coupled with the opinion of Sherrill, that a power to confess a judgment at the adjourned day, was sufficient authority to confess a judgment in February, after the parties were out of court, so as to have it entered as of the 30th of December, preceding. I think such a proceeding is not to be endured. The foundation of this suit is a judgment against a man who was not in court,

p. 246

who was not under process of any kind, and in fact had no notice of the proceeding against him. Although he authorized Sherrill to confess a judgment in December, non constat, hut that he had paid the debt, or had a good defence against the claim in February following. It is against the first principles of justice to conclude the rights of a person by a proceeding to which he was not privy, and against which he had n.o opportunity of defending himself.

The only question is, whether we can notice the illegality of that proceeding in this collateral way. In my opinion, there is ground to infer a fraudulent connivance between the plaintiff and Sherrill, who confessed the judgment before Moss ; but I am also of opinion that Moss had no jurisdiction when he received the plea of confession, and, therefore, his judgment, nunc pro tune, was void. The justice was limited, by statute, to a certain course of proceedings ; and it would be preposterous to give such a construction to the statute as would authorize what was done in this instance. It must, therefore, be regarded as a proceeding coram non judice, and void; and hence it follows that the judgment in this suit has no foundation, and must be reversed.

Judgment reversed.