Kerker & Willetts v. Carter
New York Supreme Court
Replevin, tried before Cushman, C. Judge, at the Albany circuit, in September, 1839. The cause was reached in its regular order on the calendar; the defendant was ‘thereupon called, and refused to appear; his default was entered by the clerk, and the plaintiffs proceeded to take am inquest by default.
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Replevin, tried before Cushman, C. Judge, at the Albany circuit, in September, 1839. The cause was reached in its regular order on the calendar; the defendant was ‘thereupon called, and refused to appear; his default was entered by the clerk, and the plaintiffs proceeded to take am inquest by default. After a witness had given evidence for the plaintiffs, the defendant’s counsel put a question to the witness, which did not go to controvert the evidence which had been given by the plaintiffs, but went to show a'substantive defence aliunde. The plaintiffs’ counsel objected, that such a question…
1Opinion of the Court
By the Court, Bronson, J.
Although the cause was called in its regular order on the calendar, the defendant refused to appear, and his default was entered. Both parties treated it as an inquest at the time, and the defendant cannot now be allowed to change his ground.
The case of Green ads. Willis, (1 Wend. 78,) was virtually overruled by Hartness v. Boyd, (5 Wend. 563,) which we think lays down the true rule, and was properly followed by the judge.
New trial denied.
2Cases cited2 opinions
- Hartness v. BoydNew York Supreme Court · 1830
- Green v. WillisNew York Supreme Court · 1828