Millaway & Cloud v. Wilds

Headnote

If the record of a Justice of the Peace states that a case was adjourned to a certain hour on a certain day, and on that day the defendants not appearing judgment was given by default against them, the court will not presume it was rendered before the hour appointed on that day.

Certiorari. By the record it appeared that the defendants below had been duly summoned to appear on the 4th of April, 1871, and on that day the case was “continued until the 11th inst. at 2 o’clock, P. M. “And now, to wit, this 11th day of April, A. D., 1871, the said John Millaway and William A. Cloud, the defendants, having "failed to appear, and after hearing the allegations and proofs of the said William Wilds, the plaintiff, judgment is hereby given against the said defendants by default in favor of the said plaintiff, for the sum of twenty-nine dollars and twelve cents debt, and one dollar and fifty cents costs of suit ; the return of the summons being first verified as required by law.”

The exception was that it should appear by the record that the judgment was entered at 2 o’clock on the day on which it was entered, or at all events, that it was not en

tered until after 2 o’clock" on that day, for non constat that it was not entered before that hour on the day mentioned, in which case it- would have been contrary to the adjournment and clearly erroneous.