Clelland v. People

Stone, J. The act of February 8,1876, fixing the terms of court in the third judicial district (Sess. Laws, 11th Sess., p. 67), provides that the terms of the district court of Fremont county are to be held on the third Monday of April and the second Monday of November of each year. The scire facias avers a forfeiture of the recognizance at a term of said court begun and held on the 16th day of November, .1876. There being no authority for a term begun on that day, any proceeding had at a term so begun and held would be illegal and void. While it is true, as contended for by the attorney-general, that section 20, article 6 of the Constitution empowered the district judges to fix the terms of their courts until they should be fixed by the general assembly, yet this provision of the Constitution is not to be construed as in conflict with the act of 1876 fixing the terms of the district courts in the third district, but as additional thereto, empowering the several district judges to order a term as necessity .or convenience might require, at a time other than that fixed by statute ; and in this view, if the judge of that district did, by order, fix a term of the district court to be begun and held for the county of Fremont on the 16th day of November, 1876, this fact should affirmatively appear by the record. Leave to file a supplemental record which should contain an amendment of the scire facias in respect to the day on which the court was begun and held, was denied at the last term of this court, on the ground that to allow such amendment after error brought in matter of substance, was to deprive the defendants of the right to answer; and that they had the right to plead to the case as made and presented by the writ, and hence - an amendment, which would be [246] equivalent in effect to an amendment of the writ after joinder in error in this court, would cut off that right. In respect, therefore, to the averment in the writ as to the time of forfeiture, the plea of nul tiel record was. sustained,. and the court below erred in the judgment thereon. The judgment is reversed and the cause remanded. Reversed.