Horne v. Barney
New York Supreme Court
IN ERROR, to the Court of Common Pleas of Jefferson county. It appeared, on the return of the writ of error, that the Court below arrested judgment, for the insufficiency of the declaration.
1Opinion of the Court
Spencer, Ch. J.
Error will not lie in this case, for there is no judgment to be affirmed or reversed. (Fish v. Weatherwax, 2 Johns. Cases, 215.) You should have applied for a mandamus.
*248Griffin said, that the language of the record showed a judgment of the Court below.
Lynch, contra. There is no judgment for costs, and, therefore, nothing by which the party is aggrieved. The ' plaintiff is not concluded; but may bring another action.
2Per curiam
There is no judgment to be affirmed or reversed, in this case. The party may, as he shall be advised, move to quash the writ of error.
3Cited by4 opinions
- Stephens v. D. M. Oberman Manufacturing Co.Supreme Court of Missouri · 1934
- Fish v. WeatherwaxNew York Supreme Court · 1801
- State v. StottsIndiana Supreme Court · 1840
- Favor v. PhilbrickSuperior Court of New Hampshire · 1831