Jones v. Rodman

TWO days after the rendition of a judgment by a justice in favour of the plaintiff, the defendant obtained a new trial. On the day fixed for the new trial, the parties appeared, and the plaintiff obtained a continuance on account of the absence of witnesses whom he had subpoenaed, making no objection to the previous proceedings. On the day to which the cause was continued, the parties appeared and the cause was tried, the previous proceedings not being objected to. Verdict and judgment for the plaintiff. The defendant appealed. Held, that the plaintiff’s affidavit that the justice’s first judgment was rendered in the plaintiff’s absence, and that the new trial *493was applied for and granted without his knowledge, was not a sufficient ground, under the circumstances, for dismissing appeal.