Hallock v. Jaudin

By the Court, Sanderson, J.: I. As to the right of appeal, there is no distinction between judgments by default and judgments after issue joined and a trial. The former is as much a final judgment as the latter, and the statute gives a right to appeal from all final judgments without distinction. From this it follows that all errors disclosed by the record can be reviewed and corrected on an appeal from the former class of judgments as well as the latter. This is too plain for argument, and we do not hesitate to declare that all cases which are to the contrary are unsupported by any provision of the law by which the jurisdiction and practice of this Court is regulated. To hold otherwise would be to create a distinction where the law has not, which we have no power to do. There are some cases, no doubt, which support the theory of the learned counsel for the respondents, but we have no respect for them. Some of them go upon the ground that a defaulting defendant has six months in which to seek relief from the judgment in the Court below, and therefore he has no occasion to appeal. That is to say, that he cannot appeal for six months, but he may after that time is passed. Such language is unwarranted by anything found in the Practice Act. On the contrary, the language of that Act is that an appeal may be taken from a final judgment at any time within one year after its rendition, and the Courts have no right or power to make it speak a different language, or to say that one class of final judgments and not another was intended. Besides, it is not universally true that a defaulting defendant has a remedy in the lower Court under the provisions of the sixty-eighth section. But if it were, the result contended for would not follow. Alternative remedies are common, and where they are provided a party has his [173]election, and it is not for the Courts to dictate one or the other.

Éor is there any force in the idea that a distinction is to he made between cases which were once denominated cases at law and cases which were once called cases in equity, and that on appeal from judgments by default this Court will review errors in the latter cases and not in the former. There is matter in some of the cases cited by respondents which gives color to such an idea; but we say of them, as we have said of the others, there is no foundation for the distinction.

Éor is there any force in the suggestion that this Court will exercise original instead of appellate jurisdiction if it entertains the points made on this appeal. It is true that as a matter of fact the Court below has never passed upon the sufficiency of the complaint, yet it is equally true that as a matter of law it has. Though entered by the Clerk without the direction of the Judge, it is as much the judgment of the Court as if it had been announced from the bench, and the defendants are as much entitled to the opinion of this Couz’t upon the sufficiency of the complaint as they would have been had they appeared and demurred. Questiozzs of juz-isdiction azid of the sufficiency of the complaint, upon the point whether the facts stated constituted a cause of action, are never waived in any case, azid may be made for the first time in this Court.