People ex rel. Decker v. Lynde
New York Supreme Court
Oh return to an alternative mandamus, the defendant stated that the relator sued Turner before him, by summons returnable at 10 A. M.; and at 11, the defendant not appearing, the plaintiff declared, proved his demand to $50, ^ r , , . ' , T ’ ana withdrew. The defendant appeared in a few minutes, requested leave to plead, which the justice denied, unless he could procure the plaintiff to attend.
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Oh return to an alternative mandamus, the defendant stated that the relator sued Turner before him, by summons returnable at 10 A. M.; and at 11, the defendant not appearing, the plaintiff declared, proved his demand to $50, ^ r , , . ' , T ’ ana withdrew. The defendant appeared in a few minutes, requested leave to plead, which the justice denied, unless he could procure the plaintiff to attend. He failed in persuading the plaintiff to return; but, on the same day, a warrant to be issued by the justice, at his, the defendant’s suit, against the plaintiff, on which he *was arrested, and…
1Opinion of the Court
Curia.
We differ from the justice in the construction of his powers. It is true, that before the cause is brought to a hearing; he may generally let in the defendant to plead, and make his full defence; and if he appears even while the hearing is going forward, he may be received to give evidence; but never after the cause is heard and finally submitted, though, entirely ex parte. The justice is bound to hear the merits in all cases, before judgment against a defendant. There is no such thing before him, strictly speaking, as a judgment by default against a defendant; but always a trial, or a…
2Cited by2 opinions
- United States v. LengDistrict Court, S.D. New York · 1883
- Steckmesser v. GrahamWisconsin Supreme Court · 1859