Murling v. Grote

In this case, on the return of the summons, the parties appeared, and after the justice had called his cases, the defendant’s counsel applied for this case, and was informed by the justice that he had no such case, as all the cases had been called and disposed of, and thereupon the counsel left the court with his witnesses. Afterwards, the papers were found, and the case was adjourned to another day. The plaintiff’s attorney made oath that he had served on the defendant’s attorney a notice of the adjournment. This is denied by the defendant’s attorney, who states he had no notice of any adjournment. On the adjourned day,.the plaintiff took a judgment by default.

*110I am not satisfied that the justice had any authority to proceed in the case after dismissing the defendant. On the contrary, after the defendant has appeared and been dismissed by the court, the safer course is to issue a new summons. If the course is sanctioned which was adopted in this case, it will open a door to great frauds in the service of notices, from which no relief can afterwards be obtained, for want of power in the court below to open a judgment obtained by improper measures.

The judgment should be reversed.