Johnson v. Shed

Wilde J.

drew up the opinion of the Court. The defendants object that no writ of error lies in this case, because the judgment was rendered by consent of parties on a case stated for the opinion of the Court. It appears by the record, that a default was ordered, but it is admitted that it was done with the original defendants’ consent, and that the facts proved on the trial of an issue to the jury were reported, subject to the opinion of the whole Court. And such must be the inference from the record ; for the original defendants could not be Dound to be defaulted without their consent. The judgment therefore must be considered as having been rendered as upon a case reported by consent of parties, which is substantially the same as a case stated by them. And for any mistake or error in the rendition of judgment, in such a case, a writ of error does not lie ; as it has been repeatedly determined.

But the plaintiffs in error contend that there are manifest 'errors appearing on the record in the proceedings previous to the rendition of judgment, and that this Court was ousted of its jurisdiction of the action. The exceptions are to the pleadings. It has been argued, that the original plaintiff ought not to have been allowed to new assign in the Court of Common Pleas, and that the proceedings afterwards were coram non juclice. Whether the court did right or not in allowing the new assignment, it is very clear that the objection to the jurisdiction of the Court is entirely groundless. The original defendants pleaded not guilty as to part of the trespasses as originally charged, namely, as to cutting and carrying away all the wood and timber trees mentioned in the declaration, ex.cepting so much thereof as was necessary for fire-bote and the reparation of fences and buildings on the premises, and justified as to the residue of the trespass. The Court therefore clearly had jurisdiction of this matter ; and nothing appears on the record to show that judgment was not finally for a trespass proved before the time mentioned in the new assignment, and if so, then the new assignment became immaterial. But we are of opinion, that all the multifarious and unnecessary pleadings with which the case was encumbered, were virtually waived by the default, and that they are no part of the record. The record shows a judgment by default. The pleadings were filed, and so no doubt was the report of the judge, but they are not made a part of the record. But if they were, and had not been waived, and the case had been decided on the pleadings, there still would be no ground to support this writ of error.

The objection is, that the new assignment should have been filed before the justice ; so that if the original defendants had pleaded not guilty to the newly assigned trespass, a trial might be had before the justice. And the case of Magoun v. Lapham (October term 1836, in Middlesex) is relied on as an authority in point. That case, however, does not maintain the objection. That was an action of trespass quare clausum, but the close was not described in the declaration. The defendant pleaded soil and freehold in the heirs of one George B. Lap-ham, and thereupon the defendant was ordered to recognise to enter the action at the Court of Common Pleas as the statute directs. In the Court of Common Pleas the plaintiff made a new assignment, averring that the trespasses complained of were committed within a certain close, describing it by metes and bounds, and averring that the same close was another and different close from the one described in the defendant’s plea. This new assignment was not allowed to stand, because, however the defendant might plead to it, the title to the close mentioned in the defendant’s plea would become immaterial, and thus the jurisdiction of the justice might have been evaded. In that case, therefore, it was held, that the plaintiff should have moved the justice for liberty to amend his writ by describing his close, or to have newly assigned the trespasses, so as to give the defendant an opportunity to plead not guilty, and thus to avoid a protracted and expensive litigation.

There is, therefore, a material distinction between that case and this. In the former, all the trespasses charged in the declaration were newly assigned, and in the latter, a part only. As to some of the trespasses the trial was had on the pleadings before the justice, and it does not appear by the record that the judgment was not rendered for a trespass committed previous to the time limited by the new assignment. And besides, in the present case, if the original plaintiff had assigned anew before the justice, still the justice could not have tried the case, as the original defendants had pleaded title in one of them in justification, as to trespasses not embraced by the new assignment. Nor would it follow, if there were no distinction between the two cases, that the pleadings in this case were erroneous so as to vitiate the judgment; for although in that case the Court might interpose to prevent the original plaintiff from shifting her ground of action so as to evade the statute as to the jurisdiction of the justice of the peace, yet as the original defendants did not move the Court to interpose, but went to trial on issues which were certainly immaterial, the judgment ought not now to be reversed for the mutual mistake of the parties in their pleadings. On this point however it is not necessary to give ar opinion, for, as before remarked, we consider the pleadings to have been waived by the defendants' default, and their agreement to submit the case to the opinion of the Court.

The judgment was rendered on the default, and not on the pleadings ; and nothing erroneous appears in the record of the judgment or of the proceedings.

Judgment affirmed. Judgment for defendants for costs.