De Zur v. Provost

Justice Haviland had no authority to transfer such action from himself to Justice Burr unless his term of office was about to expire. Under the provisions of section 3150 of the Code of Civil Procedure, “if the term of office of a justice of the peace is about to expire, or he is about to remove from the town or city, before judgment is rendered in an action, * ■ * * he must previously make a written order reciting the fact and directing the action * * * to be continued before another justice. * * *” There is no claim that Justice Plaviland was about to remove from the city, and manifestly he had authority to make the order of removal in this case only in the event that his term of office was about to expire. The mere recital of

But upon what theory can it be held that his mere appointment to that office caused his term as justice to expire? If he resigned his office as justice in order that he might take such appointment, or if, possibly, he had accepted "the recordership and had entered upon its duties, it would have created a vacancy in his office as justice; but it does not appear that he had done either, nor is it so stated in the order, or entered upon the records of Justice Burr. For aught that appears, he was still a justice of the peace when the judgment against the defendant was entered by Justice Burr, and no vacancy, even, had or was about to occur in his office. Indeed, if no other action had been taken, nor facts existed than were then claimed on the part of the plaintiff, it seems clear that Justice Haviland’s term of office was not about to expire when he made the order of transfer, and hence Justice Burr did not thereby acquire the jurisdiction which he claimed to act under. But the occurring of a vacancy in the office is not the expiration of a term of office. The public officers' law (being chapter 681, p. 1666, Laws 1892, § 27) provides that, when the vacancy occurs, the “unexpired term” shall be filled in the manner therein provided. So, also, a vacancy can occur only before the “term of office expires,” and a vacancy does occur upon a resignation; thus showing that the resignation of an officer does not cause the term to expire.

It was further objected by the defendant that the order of transference was made by Justice Haviland during an adjournment of the case, and while neither party was before him, and for that reason it was not warranted. Although no specific provision is made in section 3150, Code Civ. Proc., that the order be made on notice to the defendant, or that it be made in court, yet I think it should be so construed. The requirements of section 3152 are that the papers shall “forthwith” be sent to the justice to whom the transfer is made, and the plaintiff shall “forthwith” appear before him, who shall thereupon take cognizance of the action, and proceed therein as if it had been commenced before him. The provisions of this section indicate a purpose to have the order made at a time when, in the orderly course of the proceedings, the parties, or the plaintiff at least, would be supposed to be before the justice, so that both parties would have notice that it was made, and so that on the receipt of the order by the justice to whom the action is transferred it will be in a condition to be at once tried or further postponed, as such latter justice shall determine. The practice is comparatively a new one, and I do not find any decisions settling it; but there are manifest reasons why the defendant should have actual or constructive notice, at least, of the transfer, and not be subjected to a judgment against him by default, taken in a tribunal to which he has never been summoned and of which he has never been notified.