Newburger v. Campbell , 58 How. Pr. 313 ( 1880 )

J. F. Daly, J.

The notice of appeal recites as a ground of appeal that the justice permitted the cause to be tried upon the part of the plaintiffs by a gentleman who was not an attorney and counselor at law; and it appears, from the return, that the objection was duly made by the defendant’s counsel, as soon as it was disclosed, by the evidence of Mr. Furber (the gentleman in question), that he was not duly admitted to practice. The justice, nevertheless, permitted him to go on and try the case to the end, contrary to the provision of the Code, sections 63 and 64. As it is declared by the latter section to be a misdemeanor for .the judge to knowingly permit to practice, in his court, a person not regularly admitted to practice, we are of opinion that his judgment, rendered in a cause so conducted, in violation of law, is void, and must be reversed.

Van Hoesen, J.

After it appeared that Mr. Furber was not an attorney, the justice committed a misdemeanor in permitting him to continue longer to conduct the case for the plaintiffs. That misdemeanor necessarily affected the subsequent proceedings. To say that because the justice might be indicted for permitting Mr. Furber to continue in the trial, the defendant cannot complain of the misdemeanor, is to say that a suitor cannot object that a judgment against him was rendered by proceedings which violated a statute of the State, if those proceedings constitute an indictable offense.

Charles P. Daly, Ch. J., concurred.

Judgment reversed.