13 Wend. 280 | N.Y. Sup. Ct. | 1835
By the Court,
It is perfectly clear, from the language_of the statute, that the defendant below was not entitled to bring ths certiorari in this case. “ Either party, thinking himself aggrieved by such judgment, may remove it by certiorari.” 2 R. S. 255, § 170. That the party must in some way be injured by the judgment he seeks to reverse, is fairly implied from all the cases. 2 Johns. R. 8,9. 6 id. 111. 7 id. 373. Archb. Br. 230. Thinking one’s self aggrieved may be enough to bring the certiorari; but success in the proceeding is a different thing. Hughes brought the suit below against Stickney, and sought to recover for various charges of an account; the defendant acted merely on the defensive. He introduced no witnesses, and claimed nothing himself against the plaintiff. The jury found a verdict for him; they were called in the absence of the plaintiff; and for this error, the defendant brought a certiorari and reversed his own judgment, and has subjected his adversary to upwards of twenty dollars costs.
The judgment was undoubtedly erroneous, and the plaintiff could have reversed it, as he was aggrieved; but I am not aware of any rule or practice.that will permit the defendant to volunteer to right him. I think he should continue to suffer, unless he chooses to move himself in the matter.
Apartymayreverse his own judgment whenhe is aggrieved by it, as he sometimes maybe; and in England at one time he might do so, although not aggrieved, for a reason since exploded, that the. king would lose his fine, and the reversal was for his benefit. Beecher v. Shirley, Cro. Jac. 211. It was expressly decided in William v. Gwyn, 2 Saund. 46, that a party shall not reverse his own judgment,, unless he shows the error is to his disadvantage. See also 14 Johns. R. 441.
Judgment reversed.
