Payne v. Wheeler — 15 Johns. 492

Majority

p. 492

Payne against Wheeler.

Headnote

Where a éause m ajustice’s court has been once adjourm-d by consent of parties, a second ad-not'b“granted of die plaintiff

IN ERROR, on certiorari to a justice’s court.

The action in the court below was brought by the defend- , mj ant in error against the plaintiff in error. On the return of , , the summons, the parties adjourned the cause by consent, and when they appeared on the adjourned day, the plaintiff below requested a further adjournment, and made oath that a material witness who had been subpoenaed did not attend. The defendant below objected to the adjournment, but the justice granted it for six days ; at the expiration of that time, the defendant not appearing, the cause was tried, and a verdict and judgment rendered for the plaintiff below.

In Dunham v. Hayden, ( 7 Johns. Rep. 381 .) it is said that the only authority to adjourn, unless at the instance of the defendant, is contained in the second section of the act, and such adjournment must not exceed six days. In Kilmore v. Sudam, ( 7 Johns. Rep. 530 .) it is held, that the right of the justice to adjourn a case on his own motion, must be claimed and exercised, if at all, at the return of the process; and if the first adjournment is by consent of parties, no subsequent adjournment can be made on the motion of the justice. These cases are conclusive to show, that the second adjournment in the case now before us was without authority, and the judgment must be reversed, which is much to be regretted, as justice appears to have been done, and no more has been recovered than the defendant below admitted to be due.

Judgment reversed.