Nelson v. Campbell

The opinion of the court was delivered by Dunbar, J. If the appellee, in support of his judgment, relies upon the commencement of the action before Justice Jones, and which was tried before Justice Soder-berg on the 28th day of December, 1888, (and the case has evidently been tried upon that theory, from the fact that the costs in Justice Jones’ and Soderberg’s courts are incorporated in the judgment rendered by Justice Rivers), his case must fail; for the period from December 28, 1888, to March 6, 1889, the date to which the case was continued, is more than sixty days; and under 1769 of the code, a justice of the peace has no authority to continue a case for more than sixty days; and upon sucha continuance the court lost jurisdiction of the case; for the rule of liberal construction applied to proceedings in a justice’s court does not extend to jurisdictional questions. [263] If, on the other hand, it is contended that it is a new ease, commenced at the time of the filing of the complaint by Justice Rivers, we are confronted by § 1712 of the code, which provides that, in the commencement of civil actions before a justice of the peace, either by service of a summons or by service of a copy of the complaint and notice, the defendant must be cited to appear at a time which shall not be more than twenty days from the date of filing the complaint. If Justice Rivers had any authority at all to file the old complaint, it was by reason of his succession to the office of Justice Soderberg on the 4th day of March, 1889, at which date the complaint would come into his possession, and would be presumed to be filed, if at all. The mere fact that he did not place the file mark on it until March 25th, cuts no figure whatever. More than twenty days, then, having elapsed between the filing of the complaint, March 4, 1889, and April 18, 1889, the notice was in conflict with the requirements of the statutes. On either supposition, the court was without jurisdiction and the judgment was void. We do not think that the appearance made by the defendant (appellant) was such an appearance as would give the court jurisdiction of the case. The judgment of the court below is reversed. Hoyt and Stiles, JJ., concur.