Pratt v. Roberts

Appleton, C. J. The writ in this case was returnable on the first day of April, 1865, at which time the plaintiffs, and defendant respectively appeared by-their counsel, and the cause was then continued to May 6th, 1865. At the day of adjournment, the parties were again present by their counsel and a nonsuit was entered. On the Monday following, the magistrate before whom the case was triable, claiming the right to revive the action, attempted so to do. A justice of the peace has no right, except by the provisions of some statute conferring the authority, to set aside a nonsuit or default on a day subsequent to that on which the entry was made. By the Act of, March 7, 1860, c. 16, §§ 9 and 10, it is provided that " one hour from the time set in a writ for the trial of a civil action is allowed to the parties to appear; at the expiration of which time, judgment may be entered by such trial justice, on nonsuit or default, against the party who shall not appear.” § 10. "Within twenty-four hours after judgment, on non-suit or default, as provided in the preceding section, the trial justice rendering such judgment may, in his discretion, on motion of either party, strike off such nonsuit or default and revive the action on such terms as he may judge reasonable.” These provisions manifestly refer to a nonsuit or default at " the time set in a writ for the trial of a civil cause.” They do not refer to a disposition of a cause in either mode [401] at some subsequent adjournment. They relate only to the possible failure of justice by the non-appearance of the party nonsuited or defaulted at the return day of the writ. The parties having been present on the return day of the writ and the action having been nonsuited at the day to which it was continued, the jurisdiction of the magistrate was at an end, except to carry into effect the judgment rendered. The statute relied upon gave no authority for further judicial action. Exceptions overruled. Cutting, Kent, Dickerson, Barrows and Tapley, JJ., concurred.