Hubbard v. Spencer

15 Johns. 244 | N.Y. Sup. Ct. | 1818

Platt, J.

delivered the opinion of the court. The suit originally instituted before Moss was unequivocally discontinued by the non-appearance of the plaintiff in that suit, on the 30th of December, 1815 ; and the parties then stood in the same situation as if it had never existed. According to the testimony of Moss himself, the judgment before him was entered nunc pro tune, nearly two months after the discontinuance of the suit; and the only colour for that extraordinary proceeding was, that the defendant had authorized his attorney, Sherrill, to appear at the adjourned day, and confess a judgment on the suit then pending, coupled with the opinion of Sherrill, that a power to confess a judgment at the adjourned day, was sufficient authority to confess a judgment in February, after the parties were out of court, so as to have it entered as of the 30th of December, preceding. I think such a proceeding is not to be endured. The foundation of this suit is a judgment against a man who was not in court, who was not under process of any kind, and in fact had no notice of the proceeding against him. Although he authorized Sherrill to confess a judgment in December, non constat, hut that he had paid the debt, or had a good defence against the claim in February following. It is against the first principles of justice to conclude the rights of a person by a proceeding to which he was not privy, and against which he had n.o opportunity of defending himself.

The only question is, whether we can notice the illegality of that proceeding in this collateral way. In my opinion, there is ground to infer a fraudulent connivance between the plaintiff and Sherrill, who confessed the judgment before Moss ; but I am also of opinion that Moss had no jurisdiction when he received the plea of confession, and, therefore, his judgment, nunc pro tune, was void. The justice was limited, by statute, to a certain course of proceedings ; and it would be preposterous to give such a construction to the statute as would authorize what was done in this instance. It must, therefore, be regarded as a proceeding coram non judice, and void; and hence it follows that the judgment in this suit has no foundation, and must be reversed.

Judgment reversed.