Erskine v. Onyett

Perkins, J. This case came to the Common Pleas by-appeal from the judgment of a justice of the peace. On the 28th of November, 1857, the case was tried before the justice, and verdict and judgment were given for Onyett, the defendant. On the first of December following the plaintiff moved for a new trial, in the absence of the defendant, and the justice granted it immediately, without notice to the defendant, but notified the defendant on the first of December, that a new trial had been granted to take place on the 5th. On the 5th, the defendant appeared and objected to the proceeding for want of notice of the motion for a new trial. His objection was overruled, and the defendant was compelled to go into trial, and the result was a second verdict and judgment for the defendant, from which, the plaintiff appealed to the Common Pleas. The transcript is wholly silent as to the appeal, but the appeal-bond is dated December 29,1857, and was filed in the clerk’s office, Jamary 2, 1858. The justice had no power to grant a new trial three days after judgment, without notice to the defendant, and in his absence. 2 R. S. p. 460, § 56. And the defendant having objected to the proceeding, everything subsequent to the first judgment was void, and there was nothing to appeal [336] from except the first judgment. Jones v. Rodman, 4 Blackf. 492, is similar to this, except that in that case the parties appeared, the cause was continued, and afterwards tried without any objection to the granting of the new trial. It is apparent, however, that had the objection been made, the Court would have held it a good ground for dismissing the appeal. A. L. Robinson, for the appellant. In this case, the appeal cannot be regarded as having been taken from the first judgment, for the judgment was rendered thirty-one days before the date and approval of the appeal-bond, which, in the condition, contains the only evidence that an appeal was ever taken. Here, then, we have this case. On the 28th of November, 1857, a suit is tried, and a judgment rendered, in a case between the appellant and apjDellee. No motion is made for a new trial, at the time. The questions involved between the parties are settled, and the parties are out of Court. That judgment has never been legally vacated. The proceedings, subsequent to that judgment, having been had against the consent of the appellee, were void. It was proper, therefore, that the Common Pleas Court, on being ■advised of these facts, by affidavit or other proper method, should dismiss them, as it did, on motion. Had those proceedings resulted in a judgment against the appellee, he might have avoided the judgment by an appeal to the Common Pleas, where it would have been reversed, and the proceedings resulting in it ordered to be set aside, or a judgment rendered in his favor. The consequences of proceedings, such as those appearing in this case, being in a Court of special and limited jurisdiction, may be different from what they might be in a Court of general jurisdiction. Per Ouriam. — The judgment is affirmed with costs.