Aberhall v. Roach — 3 E.D. Smith 345

Majority

p. 345

Samuel Aberhall v. Philip Roach.

Headnote

Where, after commencing the trial, the justice, upon the application of the plaintiff, opposed by the defendant, adjourned the cause for thirteen days, in consequence of the absence of a witness; held, that the adjournment was illegal ' and rendered further proceedings void.^[1]

p. 346

In an action for injuries to a horse and wagon by negligently driving against them, no special damage being alleged in the complaint; held, that a question put to a witness, “ Whether the plaintiff hired another horse,” unconnected with evidence that his own horse was rendered in any degree useless by the inj uries, was inadmissible.

Appeal by the defendant from a judgment rendered against him in the Fifth District Court. The facts are stated in the opinion.

Isaiah T. Williams, for the defendant.

Chauncey Shaffer, for the plaintiff.

This action was for damages occasioned by negligently driving against the plaintiff’s wagon, whereby the plaintiff’s wagon and the horse of the plaintiff were injured. A question was put to a witness whether the plaintiff hired another horse % which was admitted under exception. No special damages were claimed in the complaint. ■

This question should not have been allowed. It was immaterial. It neither tended to show the defendant’s negligence nor the injury to the plaintiff’s property. It is suggested that it is no ground of objection, because it is proven that the plain

p. 347

tiff’s horse was useless for a week, and therefore the answer could have no bearing on the mind of the justice in rendering judgment. This is not very clear. He may have increased the damages for this reason, and if so, it had an improper influence.

The justice, after commencing the trial on the 14th April, adjourned by consent to the 20th, and again to the 28th April. On that day, the plaintiff applied for a further adjournment, on account of the absence of a witness, duly subpcened, which was opposed by the defendant, and the justice adjourned the cause to the 11th May. This adjournment was without authority, and rendered the further pi'oceedings void.

We have heretofore held that an adjoum’nment by the justice for ten days, without the defendant’s consent, was unauthorized. (Redfield v. Florence, Jan. G. T. 1854, 2 E. D. Smith, 339.) If such a power cannot be exercised before trial, there can be no possible reason for sustaining it after the trial has commenced. It is against the whole theory of the laws organizing these courts, which contemplates a speedy trial of causes pending therein. If a witness, duly subpcened, does not appear, an attachment should be issued, and the trial not be commenced until the attachment is returned. After it has been commenced, there is no propriety in such an adjournment. I doubt whether an instance can be found, even in a court of record, where the court has adjoui’ned a cause half tried, to procure the attendance of a witness, without the consent of both of- the parties. In a justice’s court no such power exists.

Judgment reversed.