Kelly v. Brower
New York Court of Common Pleas
Appeal by defendant from a judgment of the Third District .Cc^rt. The appeal was taken on the ground of error in fact; that the judgment was prematurely rendered in the absence ■of defendant, on the 18th of March, when the cause had been •.adjourned to the 19th. Affidavits were submitted on both sides, .on the question whether the 18th or the 19th was, in fact, the adjourned day.
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Appeal by defendant from a judgment of the Third District .Cc^rt. The appeal was taken on the ground of error in fact; that the judgment was prematurely rendered in the absence ■of defendant, on the 18th of March, when the cause had been •.adjourned to the 19th. Affidavits were submitted on both sides, .on the question whether the 18th or the 19th was, in fact, the adjourned day. The court, however, determined this question chiefly upon tho justice’s return, the substance of which is stated in the opinion.
1Opinion of the Court
-Daly, J.
The appeal is not brought for relief from a judgment by default or for error of law, but for error of fact in rendering judgment before the day to which the cause was adjourned.
Tho defendant, by joining issue on the merits, waived any defect in the process by which he was brought into court. Andrews v. Thorp, 1 E. D. Smith, 615.
The parties are in conflict as to the day to which the cause was adjourned. In such a case the return of tho justice, who is a disinterested party, and who has had an opportunity of in*515specting tbc entry made by him upon the summons, must determine the matter.…
2Cited by1 opinion
- Kellock v. DickinsonAppellate Division of the Supreme Court of the State of New York · 1896