12 Wend. 150 | N.Y. Sup. Ct. | 1834
In the enactments of the revised statutes relative to justices courts it is provided, that at the time of the first, appearance of the parties before the justice, e*ther upon the return of process or their voluntary appearance to join issue, the pleadings of the parties shallhe made and the issue joined; and where both parties have appeared, an issue shall be joined before any adjournment shall be had, except in the case of a warrant. 2 R. S. 233, § 47. Though this section may not be deemed imperative to the extent of excluding the indulgence granted to the defendant in the cases decided under the old law, 15 Johns. R. 86; 16 id. 180, 19 id. 390, 20 id. 309, 8 Cowen, 87, 1 Wendell, 147, yet such would seem to be the fair import of it; and I am inclined to think, that as it will bear this construction, it will be for the convenience of parties, and in futherance of justice, to follow it. Most of the cases above referred to are departures from the decision in Snell v. Loucks, 11 Johns. R. 69, which was made under the old law, and contains the true exposition of the statute, in connection with general rules and practice in the conduct of judicial proceedings. That case decided, that where the summons was personally served upon the defendant, and he did not appear on the return day and plead before the adjournment, it was afterwards too late ; and he could only give evidence in mitigation of damages. The case of Sweet v. Coon, 15 Johns. R. 86, decided that the defendant may plead if he appears and offers to make his defence before the court have entered upon trial of the merits. The defendant in that case appeared on the return of the summons, while the justice was making an entry of the plaintiff’s declaration : confining the decision to the facts of that case, it is unexceptionable. In Atwood v. Austin, 16 Johns. R. 180, it was held, that if the defendant appeared at the close of the plaintiff’s evidence on the trial, he should be allowed to go into his defence. Issue had been joined at a previous day, and I see no objection to that case. Then came Bowen v. Bell, 19 Johns. R. 390, which decides that a de-defendant is in season who appears at the day to which a cause is adjourned for the accomodation of the plaintiff or justice, and offers to plead and gb into his defence, although
To allow a defendant to come in on the adjourned day, and plead and go into his defence, even with the qualification in Lowther v. Crummie, and with the addition suggested above, would tend to encourage negligence on the part of the defendant, and to promote delay and embarrassment as to the plaintiff. The revised statutes, 2 R. S. 233, § 46, require that the justice shall wait for the parties one hour after the time specified in the summons for the return, unless they sooner appear. By § 119, p. 246, judgment of nonsuit may be rendered against the plaintiff if he fail to appear within one hour after the summons is returnable, or after the time to which an adjournment shall have been made. The provisions of the statute are very specific in fixing the limit of indulgence as to time in regard to either party; b ut rather extend it beyond the former practice.
The case under consideration, so far as this point is concerned, falls under one of the qualifications above specified, in which a defendant should be admitted to plead, and the defendant therefore should have been allowed to put in his plea and go into his defence.
Upon the facts detailed in the return of the justice, however, a doubt may well have been raised in the minds of the judges of the court of common pleas whether the demand of
Judgment affirmed.