People ex rel. Monday v. Schwartz — 3 Abb. Pr. 395

Majority

p. 395

PEOPLE ex rel. MONDAY against SCHWARTZ.

Supreme Court, Second District; General Term,

Sept., 1867.

Headnote

Jurisdiction of Justice.—Election Day.

Where a summons in an action in a justice’s court is returnable on the day of a general election, and there is no appearance, the justice acquires no jurisdiction; not even to adjourn the proceedings to another day.

A judgment entered upon such adjourned day may be reversed on certiorari.

Certiorari to review a justice’s judgment.

On October 29,1866, A. Walters, a justice of the peace of the Fifth District Court for the city of Brooklyn in the county of Kings, issued a summons in a civil action, at the suit of Frederick Schwartz against John Monday, requiring Monday to appear before said justice, at his court room, on the 6th day of November, 1866, at 8-| o’clock in the forenoon, to answer the complaint of Schwartz, &c.

On the return day of the summons the justice proceeded and called the case, the plaintiff being present; but the defendant Monday did not appear. The justice thereupon adjourned the case to November 13,1867, when the case was called. The plaintiff again appeared, but the defendant did not. The justice thereupon heard the testimony of the plaintiff and rendered judgment in his favor. This judgment was now brought i up for review.

p. 396

Wm. L. Gill, for the relator.

The day on which the summons, The issued by the court below, was returnable, was the general election day in November, 1866. The plaintiff (the defendant in error), appeared before the justice at that time, but the relator, who was the defendant in the action, did not appear, and the justice adjourned the case to a subsequent day; and on that day, in the absence of the relator, and without any appearance by him, rendered judgment against him in favor of the plaintiff. That adjournment was unauthorized. No court can be' opened or transact any business on the day of such election, except for the purpose of receiving a verdict or discharging a jury, and in certain criminal cases. (See Laws of 1842, chap. 130, § 5, as amended by chap. 240 of Laws of 1847.) The subsequent proceedings by the justice were consequently without authority, and void. He had no more power to render judgment on the adjourned day than he would have had if no summons at all had been issued.

Judgment reversed with costs.