Phelps v. Birge

The opinion of the court was delivered" by Bennett, J. We are called upon to give a construction to that act which provides that no plaintiff in a justice’s court shall be suffered tp enter an action after the expiration of two hours from the time set in the writ for trial, unless by consent of the defendant. That the profession have, in different sections of the state, given different practical constructions to this act, is unquestionably, true ; and, perhaps, there may have been different judicial determinations in regard to it; but we aie not advised that the question has ever, till the present time, been before the supreme court. There is some difficulty in determining what shall constitute the entry of an action in a justice’s court; and some have supposed that the return of the writ to the magistrate is all that the legislature meant by the term, “ entry of the action.” But that something more than this was contemplated, is apparent when we recur to the statute relating to the duties of sheriffs and other officers (page 204), where it is expressly made the duty of all officers, who shall serve a process, to return it to the court or justice to which it is made returnable, before the time set therein for the appearance of the party. We think that, to constitute an entry of an action within the purview of the statute, it is, at least, necessary for the magistrate to be at the place of holding the court •within the two hours after the time set for trial, having in his possession the writ, and being ready on his part, to proceed with the cause. Whether it is necessary for the plaintiff also to be present, we have no occasion to decide. The consequence is, that if the action is not entered within the two hours, it operates as a discontinuance, and the jurisdiction of the magistrate is iapsed and cannot be restored but by consent of the defendant entered on the records of the justice. All subsequent proceedings,-without such consent, are irregular. There is, then, no good ground of exception to the instructions to the jury. If we are correct in the position that the jurisdic [164] of the court was lapsed, in consequence of the action not being entered within the two hours, it is difficult to see how the matter set up in the special plea in bar can restore it. That the offer made by the justice, to give the defendant a hearing, can have no such effect, has been expressly decided in the case of Brown v. Stacy, 9 Vt. Rep. 118. It is equally clear that the other matter cannot have that effect. Whether a party would have a remedy in a case where the justice was prevented from attending a court, in due season, by the tortious act of the defendant, is not a case now before the court. It is sufficient in this case to say, that the matter set forth can have no possible effect in restoring jurisdiction. That the audita querela is the proper remedy in a case like this, there can be no doubt, and the case of Brown v. Stacy is an authority in point. The judgment of the court below is affirmed.