Allen & Taylor v. Edwards — 3 Hill & Den. 499

Majority

p. 499

Allen & Taylor vs. Edwards and others.

Headnote

Under the act of 1838, and previous to that of 1841, a plaintiff in a justice’s court, on suing out a commission to examine witnesses, could not have an adjournment for more than eight days.

Where a justice on issuing a commission in behalf of the plaintiff, postponed the cause indefinitely, and not to any day certain; held, irregular, and that it amounted to a discontinuance.

The parties, however, having afterward appeared before the justice pursuant to notice from him and proceeded to trial without objection; held, a waiver of the irregularity.

The insufficiency of notice of motion for a commission before a justice, must be objected at the time it is awarded; it is too late to object after the commission has been executed and returned.

Error to the Onondaga C. P. The plaintiffs in error sued the defendants in error before a justice by summons returnable April 6th, 1839. The parties appeared 'and joined issue, and the cause was adjourned by consent to the 13th of April. On the 6th, the plaintiffs gave the defendants written notice of an application to be made to the justice on the 13th, for a commission to examine witnesses. On that day the parties appeared, the plaintiffs moved for a commission, the defendants made no objection, and a commission was issued. The justice in his return states that he issued a commission, u and then postponed the suit; and that after the said commission was returned, to me, I did on the 27th day of May, send written notice to the parties that I would give the trial of the said cause a hearing on the 15th day of June, at one o’clock in the afternoon, at my office in the said town of Pompey.” On the last mentioned day both parties appeared, and the cause was tried. When the plaintiffs proposed to read the deposition which had been taken on the commission, the defendants objected that the notice which was given of the motion for a commission was insufficient, and they also objected “ to the execution of the commission by Richard H. Hopkins,” the person to whom it was di

p. 500

rected. The objections were overruled. The justice rendered judgment for the plaintiffs for $21,09, besides costs. On certiorari by the defendants, the C. P. reversed the judgment, and the plaintiffs sued out a writ of error.

C. B. Sedgwick, for the plaintiffs in error.

II. Worden, for the defendants in error.

Although the act of 1838 gave a commission to either party, it did not authorize a postponement of the trial beyond the time then allowed by law, which, when the application for an adjournment came from the plaintiff, was limited to eight days. (Stat. of 1838, p. 232, § 2, 3; 2 R. S. 238, § 69.) But by the act of 1841, when a commission is issued on the application of the plaintiff, he has “ the same time and privileges of adjournment to which the defendant is now entitled by law.” (Stat. of 1841, p. 112, § 1.) This suit was commenced and tried in 1839, and then an ad journment from April to June, on the motion of the plaintiffs, would have been irregular. But the worst feature in the case is, that the justice “ postponed the suit” indefinitely, and not to any day certain. This was clearly irregular, and amounted to a discontinuance of the action. There are many cases which hold that an irregular and unauthorized adjournment will put an end to the suit. But it is also settled that the cause is not so completely out of court but that the objection may be waived ; and if the party who might complain appears and goes to trial, the judgment will not be reversed. (Dunham v. Hey den, 7 John. R. 381 ; Willoughby v. Charleton, 9 John. R. 136 ; and see Maloney. Clark, 2 Hill, 657 .)^[1] Here the justice gave the parties written notice of the time and place when he would try the cause. The defendants were not bound to regard it,

(a) (a) See S. P. Tifft v. Culver, ante, p. 180.

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but they voluntarily appeared and went to trial on the issue which had been previously joined. This voluntary appearance in court was enough to give the justice jurisdiction over the person, and, on the principle of the cases which have been mentioned, I think the judgment should not have been reversed by the common pleas.

The defendants did not specify wherein they thought the notice of motion for a commission was insufficient. And besides, they should have made the objection at the time the commission was ordered, and not after it had been executed and returned. What was meant by the objection to the execution of the commission by the commissioner, I have been unable to discover. The facts were settled by the justice, and cannot be re-tried. The judgment of the C. P. must be reversed, and that of the justice affirmed.

Ordered accordingly.