Stafford v. Williams & Kellogg

4 Denio 182 | N.Y. Sup. Ct. | 1847

By the Court, Bronson, Ch. J.

The language of the return favors the objection, that the justice did not wait an hour for the defendant after the time specified for the return of the summons, before he proceeded with the cause. (2 R. S. 233, § 46.) But that is not the necessary and unavoidable inference from the words of the return. It states that the plaintiffs ap peared “at the time;” and that the defendant did not appear; and then, commencing with a new period, it adds, that the plaintiffs declared. It is quite possible that the declaration did not follow immediately; and that a whole hour elapsed before it was received. It is not improbable that such was the fact; and that the reason why the delay was not mentioned in the return is, that nothing was said on the subject in the affidavit, which was served on the justice. The legal presumption is in favor of the proper discharge of official duty; and we must intend that the proceedings were regular, until the contrary plainly appears. (Fuller v. Wilcox, 19 Wend. 351; Oakley v. Van Horn, 21 id. 305; Baum v. Tarpenny, 3 Hill, 75.) If this matter was mentioned in the defendant’s affidavit on which the certiorari was allowed, he should have insisted on a return stating expressly whether the justice waited an hour or not.

There is the more reason to believe that this question was not mentioned in the defendant’s affidavit, nor thought of by the justice, because in a very good brief submitted on the part of the plaintiffs, the point is not even mentioned. It has probably been started here for the first time. But it is enough that it does not expressly appear that the defendant was deprived of his hour of grace.

The defendant insists that the judgment must be reversed for the want of proper legal form in the declaration. And he objects, that there is no venue; nor any averment that the goods were sold and delivered by the plaintiffs to the defendant; and that no promise or undertaking by the defendant is stated. If the defendant had appeared and made these questions by a demurrer, the declaration would have been pronounced insufficient ; and the plaintiffs would have been obliged to amend. But considering the liberal manner in which the pleadings in justices’ courts are, and should be treated, especially when no objection is made at the time, I cannot but think the declaration sufficient. Indeed, as it sets out an account in detail, with names, dates, and articles, it is more full and formal than' such pleadings usually are; and if we should reverse this judgment there is not one in fifty of the judgments rendered in collection suits, where the defendant does not appear, which could stand. As the defendant did not appear and plead, he insists that he waived nothing; and that he is now entitled to the benefit of any objection which would have prevailed on demurrer. I cannot agree to the latter part of the proposition. It is not sustained by Northrup v. Jackson, (13 Wend. 85,) on which the defendant relies. All that was necessarily decided in that case is, that where the defendant does not appear, the plaintiff must make out his case by legal testi mony. And we think that is enough, without giving the defendant the benefit of objections which might have prevailed, if he had thought proper to attend before the justice and make them.

The plaintiffs gave sufficient evidence of their demand to warrant the justice in rendering judgment in their favor.

Judgment affirmed.