Opinion
Fall Sessions, 1839.
Wm. H. Rogers, for plaintiff in error.
J. A. Bayard and Gilpin, for defendants in error.
CERTIORARI. Debt: demand $37 98: appearance: trial by referees and report of "no cause of action." Judgment accordingly, and plaintiff for costs.
Exception; (verified by affidavit.) — Because after the rendition of judgment the justice, on the application of the plaintiff, awarded a new trial and appointed other referees, to rehear the case, which new trial the justice afterwards refused to proceed in; whereby the plaintiff was deprived of his right of appeal by the lapse of time.
The affidavit stated that upon the rendering of this judgment, he demanded a transcript within the fifteen days, with a view to an appeal: that the justice told him he had the right to a new trial, which he then demanded, and the justice named the second referees: that he afterwards, and the day after the fifteen days expired, informed the plaintiff that he had been mistaken about his right to a new trial, and refused to enter the application and grant of a new trial.
Court. — The exception cannot be allowed, and it is needless to hear proof of the fact as stated. It touches a matter subsequent to the judgment, and not appearing on the record. It suggests as error the refusal of the justice to proceed to a second trial, which itself would have been error. The plaintiff was not entitled to a new trial, and the justice had no right to grant it. If by erroneously asking a new trial, he has suffered the time for appealing to elapse, it is his own folly, but cannot vitiate a judgment already correctly rendered. His ignorance of the law or of his own rights cannot impair the rights of the defendant.
Judgment affirmed.