Majority
p. 52Barber & Crego vs. Parker & Cook.
Headnote
A justice may refuse to enter a judgment of nonsuit against a plaintiff who fails to appear on the return of the process within one hour after the same is returnable, where reasonable cause exists for such refusal.If a defendant wilfully abandons his defence, by availing himself of the momentary omission of a plaintiff to appear within the limited time, he is remediless.
Error from the Onondaga common pleas. The common pleas of Onondaga reversed a justice’s judgment, because the justice did not enter a judgment of nonsuit against the plaintiffs in a cause depending before him, for their omission to appear within one hour after the process by which the suit was commenced was returnable. The plaintiffs below sued out a writ of error. The facts were as follows : Barber and Crego commenced a suit against Parker and Cook by summons, which was returnable on the 23d August, at one o'clock, P. M. Between one and two o’clock, Parker, one of the defendants, appeared at the justice’s office and demanded that the suit be called, the plaintiff not being present; it then lacked five minutes of the hour of two by a clock in an adjoining room. The justice told the defendant, that as time pieces varied, he made it a rule to wait five minutes after the clock struck, before he called a suit, unless the parties were present, and would do so at that time. The clock struck two, and the defendant again Requested the justice to call the suit, saying that he would not wait any longer. About a minute after, the justice saw the attorney of the plaintiffs approaching, and told the defendant that he would call the cause the moment he entered the office. The defendant said that he had demanded to have the suit called since two o’clock, and that he would not answer to it, and left the office. The attorney for the plaintiffs met. the defendant and told him he was ready to attend to the suit, and entered the office within two minutes after two o’clock. The cause was called, the defendant did not appear. The attorney put in his declaration, and at his request the trial was adjourned to a future day ; at which day the plaintiffs appeared, but the defendant did not appear. The justice, after hearing proofs, rendered judgment against the defendants, which judgment was reversed by the common pleas.
F. G. Jewett, for the plaintiffs in error.
S. C. Parker, for the defendant in error.
By the Court,
The statute provides that judgment of nonsuit with costs shall be rendered against a plaintiff prosecuting a suit before a justice of the peace, if the plaintiff fail to appear on the return of any process within one hour after the same was returnable. 2 R. S. 246, § 119. In Shufelt v. Cramer, 20 Johns. R. 309, it was decided that, as a general rule a justice should wait an hour for the appearance of parties, and no longer, unless a
p. 54
reasonable excuse was shown for farther indulgence. We do not believe that the legislature intended to change the rule as thus settled, and the statutory provision above referred to should be construed in conformity to it. Many circumstances may exist rendering it necessary for the justice to delay beyond the hour to call the cause, such as being engaged in other official duties, and the like. If no reasonable execuse exists or appears, the cause should be called within the time designated by the statute, and a refusal would be error. Independently of this construction the justice was right in this case, as the defendants *wilfully abandoned their defence when the suit was about to be called. 18 Johns. R. 496. The judgment of the common pleased must be reversed.
Judgment reversed.