Church v. Stadler

Worden, J.

The question involved in tbis case is, whether a legal term of tbe Court below could be held, commencing November 19, 1860. Tbe writ was issued on November 9, returnable at tbe next term, which was commenced on tbe 19th, and on tbe 20th judgment was rendered for tbe plaintiffs, and tbe defendants appeal.

Tbe act of March 5, 1859, (Acts 1859, p. 84,) which went into effect from and ‘after October 1, 1860, fixes tbe time of bolding tbe Court of Common Pleas in Marion county on tbe first Mondays of February, June and October, and repeals all laws inconsistent therewith.

An act passed at tbe same session, but previously to tbe one above cited, (p. 91) provided that tbe Court of Common Pleas in such county should sit on tbe first Monday of January, annually, and every fourth month thereafter. “Pro vided,, That if tbe Circuit Court of said county shall be in session at tbe time, tbe Common Pleas shall be held on tbe Monday succeeding tbe time of tbe Circuit Court.”

It is contended, that although tbe time of bolding the Court is determined by the act of March 5, yet tbe proviso to tbe previous law continued in force, whereby, if the Circuit Court should be in session in tbe county of Marion on tbe first Mo7iday of February, Jwie or October, tbe Court of Common Pleas should be held on tbe Mooiday succeeding tbe time of the Circuit Court.

We do not concur in tbis view. Tbe law last approved fixes the times of bolding the Court. Those times are definite, and depend upon no contingencies as to the sitting of tbe *464 Circuit Court, or otherwise. All inconsistent laws are repealed. The proviso to the previous law, which was repealed, fell with the law to which alone it was a proviso, and was not continued in force as an independent enactment. It follows, that the session of the Court in November was unauthorized.

■ Thos. D. Walpole and R. L. Walpole, for the appellants. C. <7. Ilines, for the appellees. Per Ouriam.

The judgment is' reversed, with costs. Cause remanded, &c.