Pope v. Dinsmore

29 Barb. 367 | N.Y. Sup. Ct. | 1859

By the Court.—Pratt, J.

The defendants in this ease declined to appear upon the trial, and have appealed to the general term, from the judgment without a case or exceptions, and the motion now is made on the part of the plaintiffs to dismiss the appeal. I am of opinion that the appeal should he dismissed.

It is claimed on the part of the defendants that an objection to the sufficiency of the complaint may be taken for the first time upon appeal. If that be so, the appeal cannot be dismissed ; but if the complaint be sufficient, the judgment should be affirmed. It is true that when the complaint does not state facts sufficient to constitute a cause of action, the objection need not necessarily be made by demurrer. But the question, in my opinion, should in some form be raised and passed upon at special term or circuit, before the party objecting should be allowed to appeal.

Under the Code, the appeal to the general term seems to be provided for the revision of actual determinations of the court at circuit and special term. By section 268 of the Code, it is provided, in trials by the court without a jury, that “ for the purposes of an appeal, either party may except to a decision on a matter of law arising upon the trial, within ten days after notice in writing of the judgment.” It is then in the same section provided, when questions of fact or of law upon the evidence are desired to be reviewed by either party, that a case may be made ; and the section then contains this restriction—that the questions, whether of fact or of law, shall only be reviewed in the manner prescribed by that section. Bow, it was clearly competent for the defendants to take upon the trial an objection to the sufficiency of the complaint, and an exception to the ruling of the judge if adverse to them. But to allow them to reserve an objection of this character to be made for the first time upon appeal would be liable, I think, to great abuse, and contravene the manifest intention of the Code. If the defendants by any accident or misfortune have been prevented from appearing at the trial, they should move to have their default opened, or, perhaps, they might succeed in a motion to set aside the judgment on the ground that the record does not show a valid recovery. But they should, I think, be required to bring the question in some form before the court at special term, in order to entitle them to appeal to the general term from the judgment.

And this has been substantially passed upon by the Court of Appeals in Hunt a. Bloomer (3 Kern., 343), and Johnson a. Whitlock (Ib., 344). Those were cases of motions to dismiss appeals from judgment at general term, on the ground that no exceptions had been taken at the trial, and no case had been made or settled, and the motions were granted by the court. Now, if a party has the right to appeal upon the record alone, when no exception has been taken, and may, upon such appeal, take an objection to the sufficiency of the complaint, it was clearly improper in those cases to dismiss the appeals. The court should have examined the record, and if there was found no defect in the pleadings, have affirmed the judgment. These cases, therefore, may be deemed to overrule the cases in this court, cited upon the argument on behalf of the appellants.

Appeal dismissed, with costs.