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Dole agt. Manley and Manley.


DANIEL E. Dole agt. D. S. MANLEY and Wm. R. MANLEY.

The misnomer of a defendant can be taken advantage of, by motion, to set aside

the summons and complaint. (7 How. Pr. R. 25.) But if the notice of motion is signed by the attorney generally, without restrict

ing his appearance to the purposes of the motion only, it will be deemed a notice of retainer generally for the defendant, which operates as an appear. ance generally by the defendant in the cause; and he is thereby precluded from the benefits of the motion; because such a motion can only be made before the defendant has appeared generally. (See 1 Wend. 13; 9 How. Pr. R. 445.)

Erie Special Term, March, 1855.

Motion by defendant, D. S. Manley, to set aside the summons and complaint for a misnomer.

The true name of the defendant making the motion is Dean S. Manley, and it is written in the summons and complaint Dennis S. Manley. The summons and complaint were served upon him at the same time. The notice of this motion is ens titled “ Daniel E. Dole agt. Dean S. Manley, sued by the named of Dennis S. Manley, impleaded with William R. Manley," and is signed “William H. Andrews, attorney for defendant, Dean S. Manley, sued, &c.”

W. H. ANDREWS, for motion.
P. L. Ely, opposed.

Bowen, Justice. In Elliot agt. Hart, (7 How. Pr. Rep. 25,) it was held that the misnomer of a defendant could be taken advantage of, by motion, to set aside the summons and complaint. That it was doubtful whether, under the Code, there was any remedy therefor by answer; and that, as there should be some remedy, a defendant should be allowed to resort to a motion, pursuant to the practice prior to the adoption by the supreme court of the rule of 1825.

Dole agt. Manley and Manley.

That rule provided, that the court would not thereafter entertain a motion to set aside process, or proceedings in a cause, on the ground of a misnomer of the party arrested, but would leave him to his remedy by plea in abatement. In the cases of Mann agt. Carley, and Chapin agt. Same, (4 Cow. 148,) which occasioned the adoption of the rule of 1825, and which are the only cases in the courts of this state, prior to the adoption of that rule, sanctioning the remedy by motion, it was held, that such motion must be made before the defendant had appeared in the cause. If the practice prior to the rule of 1825 is to be resorted to under the Code, the same rules which governed the practice then, should be applicable now; and consequently the motion must now be made before the defendant has appeared.

It is not shown that the defendant making this motion has appeared in the cause, except by the notice of the motion. The notice is entitled in the cause, and is signed by the defendant's attorney, as his attorney generally in the cause; and the title gives the true name of the defendant, together with the name by which he was prosecuted.

It was held in the case of Mann agt. Carley, above cited, that a notice of retainer was not an appearance in the cause ; but the court afterwards provided, by a general rule, that service of a notice of appearance, or of retainer generally, should in all cases be deemed an appearance, except where special bail should be required—(see Rule 26 of Rules of 1845)—which rule has been continued to the present time. (See Rules of 1854, No. 7.)

The notice of the motion in this case is equivalent to, and should be treated as, a notice of retainer generally. (1 Weng. 13; 9 How. Pr. R. 445.) After the service of this notice, the plaintiff was bound to treat the attorney who signed the notice as the attorney for the defendant in the cause generally; and should he take subsequent proceedings in the cause without notice thereof to the attorney who signed this notice, or proceed in the cause as against a defendant who had not appeared, his proceedings would be set aside for irregularity.

I think the motion should be denied. As the plaintiff may

Webster agt. Hopkins.

wish to amend his summons and complaint, by inserting therein the true name, no costs of opposing the motion are given, and the plaintiff has liberty to amend.

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Erastus D. WEBSTER, respondent, agt. Nelson HOPKINS, im

pleaded, &c., appellant. The office of a notice of appeal to bring up a judgment of a justice of the peace

for review, is, to require and enable the justice to make a full and complete return of the entire proceedings in the cause, and especially (by stating the grounds of the appeal) to call his attention to the matters which are particularly relied upon to reverse his judgment. It is no part of the papers upon which the appeal is to be heard in the appellate court. It gives the latter court jurisdiction of the parties and of the subject matter, and having done this, its functions cease. Its defects cannot be considered where the appeal

is brought to a hearing upon its merits. If the notice is defective in stating the grounds of the appeal, or otherwise, the

remedy is by motion to dismiss the appeal. Justices of the peace have no power to amend the process or pleadings in an ac

tion against two or more defendants, on a joint contract, by striking out the name of a co-defendant, and rendering judgment against one and in favor of

the other. The sections of the Code which give this power of amending process and plead

ings, by adding or striking out the names of parties, and the correction of mistakes, &c., have no application to justices' courts. The title which treats of this subject, in terms, has reference to the pleadings in civil actions, and is ex necessitate confined to courts of record. (See 17 Barb., 424.)

Erie General Term, January, 1855.
Bowen, GREENE and Bacon, Justices.

This action was commenced the 28th Nov., 1853, before Charles C. Severance, justice of the peace of the town of Concord in Erie County, by the plaintiff, Erastus D. Webster, against Nelson Hopkins and Lemuel B. Clark, and judgment rendered therein on the 9th December, 1853,' against defendant Hopkins, for $70 damages, and the costs; and of discontinuance against defendant Clark.

Webster agt. Hopkins.

The complaint was verbal, upon an account for printing election tickets for defendants, as alleged, at their request. Defendants did not appear before the justice. After all the testimony had been given to substantiate the plaintiff's claim, the cause was held open and continued by the justice until the next day, at 9 o'clock A. M., at which time the plaintiff appeared, and moved to amend his complaint, by complaining against Hopkins alone, and to discontinue the suit against Clark, the other defendant—which motion was granted by the justice, and the cause finally submitted. The justice thereupon rendered judgment of discontinuance as against the defendant Clark, and at the same time rendered judgment against defendant Hopkins, for $70 damages, and $4.51 costs.

Hopkins appealed to the county court in this form, to wit:

"To the said plaintiff and the justice above named:

Sirs :—Take notice that the defendant, Nelson Hopkins, appeals to the county court of Erie County, from the judgment rendered in this action against him, in favor of the said plaintiff, on the 9th day of December, 1853, for damages $70, and costs $4.51; and the appeal is founded on the following grounds : that said judgment is against law and evidence; and that the defendants failed to appear befor the justice; and that great injustice was done, by the judgment, to the appellant; and that he has a satisfactory excuse for his default to appear; all which he will show by affidavits hereafter to be served.”

The appeal was brought to argument (at a former term) and decided by the county court, at December term, 1854—Hon. James SHELDON, county judge—who affirmed the judgment of the justice, and held that,

“Whether the ground of appeal stated in the notice, that the judgment is against law and evidence, is sufficient to allow of an argument of the points which really exist, is a question which has not (he believed) been settled in any reported case.

“If the judgment is against law, the appellant upon the argument assumes to state and argue the particular points in which

Webster agt. Hopkins.

it is against law. That is, he then avows the grounds of his appeal, and upon which he seeks a reversal.

“That a judgment is against law, is a general proposition which has no well defined or specific meaning, not pointing out wherein it is so, and requiring the respondent to make the same investigation and preparation, without any information from the appellant, as if the statute demanded only a notice of appeal to be served, without any grounds of appeal whatever to be stated therein.

“The same is true of the proposition, that a judgment is against evidence; but does a statement that it is against evidence generally, without specifying the particular, meet the provision of the statute, and effect the object designed to be effected by a specification of the grounds of appeal ?

“A cause is at issue and tried before a justice, both parties being present. The plaintiff offers testimony clearly irrelevant or incompetent, and the defendant objects, but omits to state the grounds upon which his objection is founded. The appellate court would not allow an argument upon those objections; for it is well settled that such objections must be specific, and show the precise point of objection. This is for the double purpose of calling the attention of the judge to the point of the exception, and to afford the opposite party an opportunity of obviating the objection by additional proof. (20 Johns., 357; 15 Wend., 502 ; 5 Barb., 598.)

“ The court says to the appellant, in such a case, you was present and objecting, and it was for you to state the grounds of your objection then, in order to avail yourself of them here.

“When the defendant does not appear at the trial, he has the right, upon appeal, to raise the same objections to the competency, relevancy, or insufficiency of the testimony, as if he had been present and specifically objected. (7 Johns., 18; 14 Wend., 159.) But, in either case, there should be a time be fore the argument, when the respondent is informed of the grounds of the objections. In the former case, this is generally done by stating in the notice of appeal, as a ground thereof, that the justice erred in overruling each and every of the ob

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