Jennerson v. Garvin

Adjournments — Practice—Justice's Act — Jurisdiction. Apartyat whose instance and by whose agreement a canse in a Justice’s Court, is continued more than ninety days from the return day, cannot claim a dismissal by reason of the delay; and a dismissal on his motion is error.

Error from, Saline District Court. Garvin brought suit before a justice of the peace to recover for the use and occupation of a dwelling-house. Defendant, Jennerson, answered, making a general denial, and procured several continuances, covering in the aggregate some seventy-nine days from the return of the summons. He then consented to a further continuance for twenty-seven days, at which time he procured the action to be dismissed for want of jurisdiction. On error to the district court the judgment of the justice was reversed, and the cause held for trial as upon appeal. Defendant Jennerson now brings the case here on error. 1. The adjournment of the cause by the justice of the peace on the 12th of November to the 9th of December, 27 days, and making with previous adjournments more than 90 days, divested him of jurisdiction in the, case. The justice’s act provides for an adjournment at the return-day, or any subsequent time to which the cause may stand adjourned, on the application of either party for a period not to exceed ninety days from the time of the return of the summons. § 82, ch. 81, Gen. Stat., 794. Any adjom’nment to a time beyond the period of “ ninety days from the time of the return of the summons ” ousted the justice of his jurisdiction, and was a discontinuance of the action. “An irregular adjournment, or for longer than is authorized is cause for reversal of judgment.” Kimball v. Mack, 10 Wend., 247; Palmer v. Green, 1 Johns. Cas., 101; Golden v. Dopkin, 3 Caines, 171; Gamage v. Law, 2 Johns., 192; Payne v. Weeeler, 15 Id., 492; Pedfield v. Florence, 2 E. D. Smith, 339. ■ The rule that consent to an “irregular adjournment” is a waiver, and the party asking for or consenting thereto cannot take advantage of the error, has application only to adjournments made for want of proper showing, and not to adjournment beyond the day limited by the statute. The object of the statute is to prevent delays, and parties must take notice of its provisions at their peril. The discretion of the justice is limited to the periods within which power to direct them is given by law; and an unauthorized adjournment amounts to a discontinuance. Proudfit v. Henman, 8 Johns., 391; Hogan v. Baker, 2 E. D. Smith, 22. Where a justice of the peace adjourned a suit pending before him for more than ninety days, it operated as a discontinuance. Mahr v. Young, 13 Wis., 634. 1. The adjournment from Aug. 23d to Nov. 10th, were made on application of plaintiff in error; and those from Nov. 10th to Dec. 9th were made by agreement or consent of both parties. These facts estop the plaintiff in error from alleging error in the adjournments. 3 Caines, 166; 1 Hilton, 291; 2 E. D. Smith, 339. Consent operates as a waiver of all irregularities or errors. 2. The justice erred in rendering judgment against defendant in error, after dismissing the action for want of jurisdiction. If he had no jurisdiction he could render no judgment. JElderhin v. Spurbech, 1 Chand., 69; Mitchell v. Kennedy, 1 TYis., 511.