Ex parte Stafford

Ex parte Stafford. UTICA, Aug. 1826. An appeal lies from the judg-mentofa jus-⅛ m pi a iu tiff avhere an issue ‘«joined • though the defendant do not appear, and lake no pari in the tria1-. Stafford sued Faniham before a justice of Madison # 0 county. He declared ; and Faniham pleaded the general «ssue. The cause was then adjourned. The defendant did not appear at the adjourned day ; when the justice heard the cause, and gave judgment for Stafford. Fan-iharn appealed to the Madison common pleas. Oh a motion before them in behalf of Stafford to quash the appeal, on the ground that, there having been no trial before the justice, a certiorari, not an appeal, was the proper remedy, they denied the motion. J. A■ Spencer, now moved, (ex parte,) for an alternative mandamus, commanding them to quash the appeal; and cited laws of 1824, sess. 47, ch. 238, p. 294, s. 36, and Hanvoodv. French, (4 Cowcn, 501.) The motion was not opposed ; but [MAJORITY — Per Curiam.] Per Curiam. The case cited was one in which no issue was joined. If an issue is joined, there must be a trial before judgment can be rendered for the plaintiff ; though it maybe ex parte, and like an inquest at the circuit. It is not the less a trial of the cause, within the words of the statute, because it is not actually contested, and witnesses sworn on both sides. It does not alter its character, whether the defendant be present or absent. The motion must'be denied. Motion denied.