Tenny v. Filer., 8 Wend. 569

Tenny v. Filer.

8 Wend. 569 | N.Y. Sup. Ct. | 1832

By the Court, Savage, Ch. J.

The appearance and confession of judgment by Brooks shewn in this case was not an ap« *570pearance and confession, within the meaning of the statute. By the act of 1824, § 12, a justice of the peace is authorized “ to enter a judgment by confession of the defendant.” The praseology of the act of 1818 is in the same terms, and under that statute this court laid down the broad principle, “ that a justice could not legally enter a judgment, unless the defendant appeared in person, or by attorney before him, in court, and confessed judgment, or had been duly summoned, as in ordinary cases.” Bromaghin v. Thorp, 15 Johns. R. 476. If that decision be law, the court below erred. If there has been a loose practice as to the entry of judgments by justices on confession, as in the present case, it has been wrong, and the sooner it is corrected the better. The entry of the judgment was á nullity. The judgment of the common pleas must be reversed, and as the plaintiff cannot recover on the title he set up, there is no necessity for a venire de novo.

Judgment reversed.