Lewis v. Jones , 13 Abb. Pr. 427 ( 1862 )

Bosworth, Ch. J.

—The defendant" neither makes an affidavit of merits, nor attempts to excuse his laches in not moving at an earlier day.

There is no affidavit that" the judge did not file a decision in proper form. In the absence of such an affidavit, or of proof, that search has been made and that no decision on file can be found, I think I should presume that he did his duty.' The judgment is not void. The record show's that the action was' tried before the court, that enough of facts were found to authorize the judgment ordered and entered. ■ It is not void: (Sands a. Church, 2 Seld., 347.) There being no pretence of merits, and there being nothing to create a suspicion that tho action was not correctly decided, upon sufficient and competent evidence, and the time to appeal having expired, the omission to file a decision in writing is a defect which cannot “affect the substantial rights of the adverse party” (Code, § 176), and should be disregarded.

I think the motion should be denied, with $7 costs: but with liberty to the plaintiff to insert in his record the decision of the judge, if he made one in writing and filed it; and if lie did not,to procure one to be made and filed within ten days, nunc fro tune, and to be inserted in the record. If the plaintiff amends his record, this motion is denied, without costs.