
    Thomas v. Keeler et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    May 10, 1889.)
    Judgment—Default—Setting Aside.
    Where a defendant is present when the case is called, but refuses to answer, or to take part in the trial, on the ground that it was called too late, there is no failure to appear, within the meaning of Code Civil Proc. H. Y. § 3064, relating to appeals from justice’s court, and providing that “if the appeal is taken by a defendant who failed to appear before the justice, either upon the return of the summons, or at the time to which the trial of the action was adjourned, ” and gives a satisfactory excuse for his default, the court may, in its discretion, set aside the judgment and grant a new trial, etc.
    Appeal from Delaware county court.
    Action by George A. Thomas against Edmond S. Keeler and William K. Stevens, commenced in a justice’s court. The facts appear in the opinion. Code Civil Proc. § 3064, is as follows: “If the appeal is taken by a defendant who failed to appear before the justice, either upon the return of the summons or at the time to which the trial of the action was adjourned, and he shows, by affidavit or otherwise, that manifest injustice has been done, and renders a satisfactory excuse for his default, the appellate court may, in its discretion, set aside the judgment appealed from, or stay proceedings thereunder, and by order direct a new trial, before the same justice, or before another justice of the same county, designated in the order, at such a time and place, specified in the order, and upon such terms, as it deems proper.”
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      F. Ff. Gilbert, for appellant. C. L. Andrews, for respondents.
   Hardin, P. J.

This was an appeal from an order of the Delaware county court, setting aside a judgment entered in a justice’s.court, and awarding the defendants a new trial before another justice of the same county. The order was made under section 3064 of the Code of Civil Procedure, and based upon an assumption by the court that the defendants failed to appear before the justice at the time to which the trial of the action had been adjourned. If the court was justified in assuming that there was such a failure to appear, then we are of the opinion that the order appealed from should be affirmed. If the defendants failed to appear, then it was discretionary with the court whether it would grant a new trial upon the proof before it, as to manifest injustice having been done, and as to the sufficiency of the excuse rendered by the defendants for their default. Such an order should not be reviewed by this court. The rule is well established that the decisions of one court resting in its discretion.are not reviewable by another, unless such review is specially authorized by law. If, however, there was no failure to appear before the justice at the time to which the trial of the case was adjourned, it must follow that the court below bad no power or authority to make the order in question. It will be observed by an examination of the statute that it is only a defendant who has failed to appear before the justice, either upon the return of the summons or at the time to which the trial of the case was adjourned, who is entitled to a new trial as therein provided. Code Civil Proc. § 3064. Hence, whether the defendants appeared before the justice at the time to which the trial was adjourned, within the intent and meaning of this statute, seems to be the controlling question in this case. The defendants contend that, notwithstanding the fact that they were present, both in person and by attorney, at the time to which this action had been adjourned, and that they remained until the case was called, and during the trial, yet, as their attorney refused to answer when it was called, or to take part in the trial, on the ground that it was called too late, although he had agreed to wait until that time, there was a failure of the defendants to appear, within the intent and meaning of the statute. We do not think so. The purpose of this statute was to provide a remedy for any fraud practiced, or improper means employed, by a party to induce his adversary not to appear before a justice, either on the return of the summons or at the time to which the trial was adjourned, or when such failure was occasioned by accident or mistake or other misadventure. This case falls far short of being within the purpose or intent of this statute. One of the defendants was sworn and examined as a witness on the part of the plaintiff,-and fully understood the trial was taking place. In this case the defendants did not fail to appear, but, appearing, willfully refused to answer when the case was called, or to take part in the trial. This did not constitute a default on the part of the defendants within the meaning of this statute, but it was a voluntary abandonment by them of their case. Baldwin v. Carter, 15 Johns. 496; Barber v. Parker, 11 Wend. 52; Cornell v. Bennett, 11 Barb. 657. We are of the opinion that there was no failure to appear before the justice at the time to which the trial of this action was adjourned, within the meaning and spirit of the statute, and therefore that the court below had no power or authority to make the order in question. It therefore follows that the order appealed from should be reversed. All concur.  