Malcom v. Baker

8 How. Pr. 301 | The Superior Court of New York City | 1853

Welles, Justice.

This motion cannot be granted. It comes entirely too late. I doubt very much the power of this court to give the relief sought for, after the argument of the appeal and final judgment of affirmance thereon, at the general term. It seems to me that the judgment must first be set aside, before the defendants can have leave to amend their answer. A motion to set aside a judgment of the general term, confessedly regular, cannot I think be granted by the special term, for the purpose of allowing a party to amend his pleading. But admitting this may be. done at special term, before I can consent to such a stretch of the power of amendment, it should not only appear that the party has been surprised or misled, after the exercise of ordinary care and skill, but that the amendment asked for is clearly required in order to promote the ends of justice.

The papers on this motion show what the evidence was which was exhibited before the county judge when the application was first made before him, and in my judgment it clearly gave him jurisdiction to entertain the further proceedings which were had before him. The objection to this evidence is, that it consisted of facts stated in an affidavit, upon information and belief. After setting out the two judgments constituting the indebtedness of Baker to the plaintiffs, the executions, issued thereon, and the returns thereto by the sheriff, the affidavit proceeds as follows: “ The deponent further says that the said Abner Baker has assigned, removed,, and disposed of his property with the .intent to defraud his creditors, as this deponent has been informed and believes true.

The facts and circumstances upon which such belief Is founded are as follows,” &c. The affidavit then proceeds to state positively and'without qualification, the facts and circumstances,.' which beyond doubt, were sufficient to give the county judge jurisdiction.

Admitting that his decision to entertain jurisdiction would be held erroneous upon review on certiorari, it by no means follows that he acted without jurisdiction. I had occasion to-consider the authorities on a similar question In Sheldon agt. Wright, (7 Barb. S. C. R., pp. 41, 42.)

If the county judge had jurisdiction, his. acts, though erroneous, were valid' and binding until reversed.

Entertaining these views I cannot consent to grant the motion. I may be wrong; but I have no guide on such occasions-but my own convictions, and I should not feel justified in going contrary to them, in order to- grant the defendants an extraordinary favor, for the purpose of experimenting upon other minds with the same question.

The motion is denied with $7 costs.