Combs v. Dunlap

Where the plaintiff in a justice’s court fails to appear within one hour from the time to which the cause has been adjournefl, judgment of nonsuit must be rendered against him. Although a judgment against the defendant for costs in such a case is void, it will nevertheless be reversed on certíora/ri ¡ it being one of the principal objects of that writ to keep inferior courts and tribunals within their jurisdiction.

CERTIORARI to a Justice of the Peace for Dane County. The action before the justice was by Combs against Dunlap, on a promissory note made by the latter for $24.32, and was commenced February 20th, 1864. The return day named in the summons was March 1st, 1864, and the justice’s docket of that date states that the parties appeared, and Dunlap answered, denying generally, and gave notice, in substance, that he would prove on the trial that he had paid the sheriff on an execution in his hands against Combs, March 1st, 1864, $26.79, “ and taken his receipt therefor to apply on defendant’s indebtedness to said Combs on the note in this action.” The cause was adjourned to March 8, 1864, and the justice’s return shows that when it was called upon that day the plaintiff did not appear ; that a witness for the defendant was sworn, and the execution and sheriff’s receipt above referred to were put in evidence ; and judgment rendered against the defendant for costs. The justice states in his return that “ the only appearance of the plaintiff on the return day was by the note left on file” with him. The affidavit of Combs for the writ of certiorari shows that he resided at a distance from the office of said justice, and that he did not appear on the return day because Dunlap, before that day and after the service of the summons, promised to pay the amount of his claim and costs. It also shows that the plaintiff did not know of the judgment rendered in the cause until after the time for an appeal had elapsed. cited R. S., ch. 120, sec. 157, subds. 2 and 3; Sprague v. Shed, 9 Johns., 140; Green v. Angelí, 13 id., 469. contended that as the judgment below was void on its face, certiorari would not lie; also that the judgment given was equivalent to a non-suit. 5 Hill, 269 ; 4 Term, 608; 2 Dev. Law, 111; 3 Iredell, 420; 11 Mass., 445. argued: 1. That inasmuch as the court had acquired jurisdiction of the parties as well as of the subject matter, it was not quite clear that the judgment was void, citing Belyea v. Ramsay, 2 Wend., 603. 2. That the writ lies to restrain a magistrate who, having jurisdiction of a cause, makes an order or judgment therein in excess of his power. Stokes v. Knarr, 11 Wis., 392; Tallmadgev. Potter, 12 id., 319. 8. That the use of the writ in setting aside void judgments is not confined to cases in which an execution upon the judgment would be a protection to the officer. Thus judgments for an amount exceeding the jurisdiction of the court — executions on which would be void on their face (12 Ind., 358) — are reversed as freely as airy other. Beard v. Kinney, 6 Blackf., 425 ; Trew v. Gaslcill, 10 Ind., 265 ; May v. Crawford, 14 id., 5. 4. That it is not necessary to show that the void judgment could be used in any way to the injury of the party. People v. Judges of Suffolk, 24 Wend., 252; 22 id., 185; State v. Thompson, 2 N. H., 236; 2 Burr., 1042; 1 W. Blacks., 233, 235; 5 Mass., 420; 13 Pick., 195; Hempstead’s C. 0. R., 174.