Oakley v. Horn

By the Court, Cowen, J. The statute, 2 R. S. 175, § 110, 2d ed. requires that previous to Receiving the verdict, “ the justice shall call the plaintiff. If he be absent, and no one appear for him, the verdict shall not be received.” The statute is merely directory in respect to the ceremony of calling the plaintiff. The object is to ascertain whether he.be present; .and it is enough that he be actually present, and not objecting.. Non constat that he was desirous to have a nonsuit entered. If otherwise, he might have said so, or have actually withdrawn, as in Platt v. Storer, 5 Johns. R. 346. As to the costs being over five dollars, there may have been foreign witnesses. 2 R. S. 177, § 127. That we must intend, nothing appearing to the contrary; in which case, by the section cited, more than five dollars may be [307] given. Beside, the defendant before the justice being sued for an official act, was entitled to once and a half his costs. 2 R. S. 612, § 25, 2d ed. That may and probably did, in this instance carry the amount to $6 45. The court of C. P., in reversing the justice’s judgment, took for one ground that the jury found against evidence. I think they erred in this respect, according to the case of Stryker v. Bergen, 15 Wendell, 490 ; and if there was tío other ground for reversal presented by the return, the justice’s judgment must be affirmed, according to Noyes v. Hewitt, 18 id. 141. The jury had evidence before them tending to show that Tan Horn resided in No. 10. I admit the evidence against his residence there, was very strong and decidedly preponderant. But the common pleas do not sit to grant a new trial on the weight of evidence. They act as a court of error, and can only decide the law upon uncontradicted facts appearing in the return, and upon points of law properly raised on those facts. Accordingly, if we are authorized to hold from the return that no demand was made of the tax in question previous to a levy, pursuant to 1 R. S. 478, § 98, 2d ed., and that the point was duly raised in the justice’s court, there was error within the rule laid down in Jackson ex dem. Cook v. Shepard, 7 Cowen, 88. This was another ground of reversal by the C. P. But in the case at bar, the return is merely silent as to the proof of demand. No objection appears to have been made on that account, as was done in Jackson v. Shepard, nor does it appear affirmatively that the proof was wanting. I think we must intend, therefore, that it was given. Even on a judgment by default, where no evidence was returned, this court intended it was sufficient, the contrary not appearing. Wilson v. Fenner, 3 Johns. R. 439, The case cited recognizes the doctrine of the' common law,which has been often repeated, that the judgment of an inferior court is sustainable if it appear to be regular after jurisdiction obtained, without its showing any evidence in particular. It is enough to say-, “ after hearing the proofs and allegations of the parties.” The certiorari at the common law did not reach the evidence any more than a writ [308] of error. Birdsall v. Phillips, 17 Wendell, 464, and the cases there cited. Rathbun v. Sawyer, 15 id. 451. In order to bring error, the points of law on the evidence are raised by a bill of exceptions which was given by statute; and- to attain a like object in respect to the justice’s court, an affidavit stating the facts and points of law must be made, to the allegations of which the justice is to return, admitting or denying them. People, ex rel. Roe, v. Suffolk C. P., 18 Wendell, 550. Had the objection now raised come before us on a bill of exceptions, it must have been shown affirmatively that the collector failed to justify, by proving a demand before he levied; and beside: that the defect was mentioned as an objection'; for it is one which may be supplied, and we would intend that had the objection been raised, it would have been obviated by proof of the fact. Here the parties , were present, with every opportunity tp raise the point. It has been held in a late case, on a certiorari, that an omission to object will even authorize this court to infer a fact' necessary to confer jurisdiction. Baldwin v. Calkins, 10 Wendell, 167, 174. So far, at least, as the merits are concerned, the court of error are expressly required by the statute to “ proceed and give judgment in the cause as the right of the matter may appear,” &c. 2 R. S. 185, § 181, 2d ed. Is it right that a party should be received on certiorari to make an objection which he would not hazard in thé court below, perhaps for the very fear of its being met? That is not so held in any other court of error and the rules of intendment have always been most strongly applied to sustain the judgment in cases of certiorari to a justice. The judgment of the O. P. should be reversed, and that of the justice affirmed. Judgment accordingly.