Crosby v. Massey

The opinion of the court was delivered by Huston, J., (who stated the facts of the case.) — It has been contended here, that the judgment was irregularly signed, was erroneous, that defendants had a right to wait till final judgment on the inquisition, and if the inquest awarded a small sum, acquiesce; if a large one, take a writ of error and reverse it. Perhaps there was a time when such was the law, but much of what was once the subject of a writ of error in England, or of audita querila is now relieved from on motion, and I doubt whether any counsel, would venture to argue a writ of error in England, in such a case as the present. The time and manner of filing a narr, of appearing and pleading by defendant, and of signing judgment for-want of a plea, &c. are matters of practice regulated by rules of court, and the practice of the court, and irregularities in any of these respects are universally remedied by applications to the court, whose rules or practice is supposed to have been violated. Tidd’s Prac. 434, 8 Serg. & Rawle, 502. One universal rule is, that the person complaining of any irregularity, must apply for redress as soon as he knows of the injury. In no court is he allowed to lie by, conceal his complaint, subject the other party to delay, expense, and perhaps total loss, and after all this, to obtain redress for a mistake, of which he had full knowledge as soon as it was committed. The complaint here is, that the entry of the amicable suit, was in effect, an appearance by the defendants and they were entitled [232] to a rule to plead. The plaintiffs contend, it in fact only amounted toan acknowledgment of service of writ,hut not to an appearance. I think, the plaintiff was wrong, that the judgment was irregular and would have been, or ought to have been set aside, if the application had been made at the next term. The plaintiff’s attorney seems to have thought so. It was not made at the next nor even the second term. If we reverse here, we take from the Common Pleas all power of regulating their own practice, all controul over counsel, and causes in their court; we assume the controul and supervision of every rule in every cause in the State; and all this, not to effect justice, but to restore an obsolete practice of disregarding right and justice, and deciding every cause according to the strict accuracy and accumen of the pleader. I repeat, what has been often said, that the several Courts of Common Pleas, have a right to make their own rules, and regulate their own practice. It is possible, a rule of court may be contrary to an act of assembly, and illegal. I don’t say, we will not in any case reverse for a practice under such a rule. The rules and practice followed in this case, are salutary and wise, and the decision of the court on these rules, right. I am not sure, that such a decision as that complained of in this case, depending on several rules of court, and the practice under them, and where the facts were brought before the court on affidavit, is tha subject of a writ of error. I do not say, however, that we will not in any case reconsider a case so brought before us.- In the present case, the judgment of the court below is affirmed. Judgment affirmed.