Eaton v. Houghton

The opinion of the Court was delivered by Hutchinson, J. The Court entertain fears that justice has not been done, but the case is too defective to render it possible for this Court to afford a remedy. The party who would avoid a judgment by reason of error, must show that error, and must present those facts from which it can appear what law ought to govern the case, as well as .what decisions, in point of law, have been made in the case. But one decision is objected to in this case. That is the exclusion of the deposition of Norman Smith, on occount of its irrelevancy. Non constat how the fording of the river affected [382] rights of the parties, how it should tend to show that the plaintiff owned the horse, or that the defendant had converted him. We may conjecture that the plaintiff lent the defendant horse, and he kept him over the set time, and would excuse himself by showing the difficulty of crossing the river; yet it is but conjecture, for the case does not show it. Besides, the deposition is vague as to time. It says, “about the last of March, or first of April,” &c. This but poorly meets a period from the 7th to the 14th of April. The deposition was therefore rightly excluded. There is testimony, stating that the horse was attached on the 14th of April, on a writ in favour of one' Judson, against the plaintiff, returnable the July following. Possibly this ought to have operated like a return of the property to the plaintiff on the same day, to mitigate damages. But it does not appear that the Court made, or were called upon to make, any decision on the subject which this Court can now revise. Nor could an understanding decision be made, merely upon the facts here disclosed. The defendant ought at least to have shown something about the nature of the suit; some prima facie evidence of there being a cause of action in favour of Judson against the plaintiff. The testimony of Judson might have been sufficient between these parties. But the disclosure is of the writ and service only. For aught that appears in the case, the plaintiff might have been contending, that the writ was procured by the defendant himself, and this the very conversion complained of by the plaintiff. Such presumptions should be negatived by a true statement of what facts were contended for, and what there was evidence tending to prove. In this there is a total failure. Another objection is raised, that there appears no continuance of the action from June 8th, when the writ was returnable, to the 15th when it was tried; or rather, that it appears to have been tried when it was legally out of court. There is a vacuum in the record in this respect. And the question arises whether any thing which does appear in the record cures this defect. It does appear in the record, that the defendant appeared and answered to the action on the 15th and plead the general issue, and prayed for a jury, and the merits of the case were tried. The defendant appealed to the county court, and had another jury trial there, and it does not appear by the record, nor is it pretended, that the defendant, either before the justice or the county court, made any objection to the action’s proceeding. It is very important that objections to the irregularity of process should be made in time to prevent unnecessary cost. And we must not forget the distinction between a want of jurisdiction of the subject matter, and a want growing out of irregu [383] larity of process. The last may be waived by pleading to the merits; the first cannot be so waived. All the points raised on the subject matter of abatement, were raised and decided by the Supreme Court, in the case of Stone vs. Proctor, 2 D. Chip. R. 108. Isaac Fletcher and Augustus Young, for the plaintiff in error. Sanders W. Cooper and S'. Cushman, for the defendant in error. Judgment, that there is no error; that the judgment of the county court be affirmed, with six per cent, interest, and cost of this writ of error, and execution issue from this Court for the whole. Skinner, Ch. J. was absent.