7 Barb. 457 | N.Y. Sup. Ct. | 1849
We are Of opinion that it sufficiently appeared before the justice that a new trial had been granted by the county court. The judgment record and the opinion of that court, by which it appeared that the judgment below had been reversed and a new trial awarded was enough for the justice to act upon. The objection that if the county court reversed the judgment it could not grant a new trial, was too technical. It is true that the code does not treat an order for a new trial as involving the reversal of the judgment below ; but it does that substantially; and the justice was right in disregarding the objection.
The important question upon this appeal is whether the justice who tried the cause wherein the judgment was rendered upon which the present action was brought ever acquired jurisdiction over the person of the defendant.
The declaration before the justice was founded on a judgment rendered in a justice’s court, and under sections 138 and 57 of the code merely alledged that the judgment was duly rendered, without setting forth any fact to show the jurisdiction of the justice. This allegation was controverted in the answer; which made it the duty of the plaintiff to prove the facts conferring jurisdiction, under the provision of the said 138th section of the code of pi'óóedure. In addition to this, the defendant in his answer denied in all possible forms any service of process, or any appearance by him, in the suit in which the judgment was obtained.