Town of Lyndon v. Cook ( 1846 )

The opinion of the court was delivered by

Royce, J.

The case does not find, whether the facts set forth in the motion were true; and hence we find some difficulty in treating them as facts. But, regarding them as such, we do not perceive that the decision of the county court, in denying the motion, can be ¡pronounced .erroneous. Had the question been brought here, whether this defendant was legally required to testify for the plaintiffs on ¡the first trial, upon a separate judgment being entered for him, without any waiver, by the plaintiffs, of their right to review as to him, it would doubtless have received a different consideration. But •without such waiver, or something on the record, showing that judgment to have been final, the cause was equally reyiewable against this defendant, as against .the others.

Assuming, then, that the motion truly sets forth the proceedings at the first trial, we can only say, it presents a case of irregularity, and perhaps injustice, in regard to this defendant; — but the irregularity, being previous to the review, and not excepted to.at the time, is beyond the correction of this court.-

Judgment of county court affirmed.