Catlin v. Billings and others

Catlin v. Billings and others. That damages were assessed against the defendant in the court below, without any affidavit having been filed proving his default in not answering, is a matter of practice not reviewable in this court upon appeal from the judgment. Motion to dismiss appeal. The action in the Supreme Court was against Billings, Latson and Fowler, on a note made by Latson and indorsed by the two other defendants. Latson and Fowler answered, and the plaintiff brought the action to trial at the circuit, when an inquest was taken, none of the defendants appearing. The verdict was against the three defendants, and judgment was entered upon if, which was affirmed on appeal taken by Billings, at a general term. As the defendants did not appear at the circuit, there was, of course, no exception taken on the trial. Billings appealed from the judgment to this court. The plaintiff moved to dismiss the appeal. In opposition to the motion, it was shown that Billings moved, at a special term, to set aside the judgment for irregularity; that this motion was denied, and from the order denying it Billings • appealed to the general term at the same time that he appealed from the judgment, and the order was affirmed. Billings asked that he have leave to apply to the Supreme Court to amend the return by adding to the record the motion to set aside the judgment and the proceedings thereon, including the affirmance of the order on appeal. The question which the appellants sought to raise upon the merits here was, that there was no affidavit filed in the Supreme Court that he had made default in answering. Nicholas Hill, for the respondent X II. Reynolds, for the appellant. [MAJORITY — Per Curiam.] Per Curiam. There is no question of law arising upon the record contained in the return. No exception was taken upon the trial. If there was an irregularity in assessing the damages against Billings, without an affidavit that he had made default in answering, that was a question of practice which is not reviewable in this court. Nor would the matters which the appellant seeks to have added to the return present any appealable question. There was an order made on a motion after judgment, but the motion was to set aside the judgment for irregularity. We have decided, a number of times, that where the object of a motion, after judgment, seeks to impeach the judgment for irregularity, the order upon such motion is not the subject of appeal. The motion to dismiss the appeal must be granted.