Peach v. Mills

The opinion of the court was delivered by Redfield, J. In the present case, the court consider the facts agreed and placed upon the record, not sufficient to establish the plea, as pleaded. The facts agreed are, that the justice was at the place set for trial, within two hours after the time appointed in the writ; that he there inquired for writs and was informed of this, which was then in the office, and left, saying, if there was an appearance “ inform me.” He did not return until the first two hours had expired, but finding the defendant present, proceeded to hear the case, [503] when the present plea in abatement was interposed, which is, in substance, that the suit was not entered within the first two hours, as required by statute. We think there was a sufficient entry of the action. This process was instituted under the present existing statutes. It is required that the justice should, within two hours after the time set for trial, “ be present with the plaintiff’s writ at the place appointed for trial.” We do not intend to say there might not be a literal compliance with this statute, which would not be a substantial entry of the action. If the justice were only accidentally present, having no knowledge of the suit, and the writ present, but not known to him, possibly this might not amount to an entry of the action. But if the justice came to the place of trial, within the first two hours, for the purpose of attending to the action, and was there informed of the writ being returned, we do not think it necessary he should call the parties, or take the writ in his hands, or literally remain at the place until the cause was disposed of, (which might often prove inconvenient,) or that he should in fact have come to the place with the purpose of proceeding instanter to the hearing, or that he should make any special order, as to the suit, or the hearing. If he came to the place to discharge his duty, as a magistrate, in regard to the suit, cither presently or in a convenient time, and had knowledge of the writ, which was at the place and in his power, and, by consequence, in his legal custody, it was sufficient. The action was sufficiently entered, and the court opened, and there was no necessity of any special order to keep it open, much less that the justice should remain in the room appropriated for the time being for a court room, in order to hold the court open. All this would be surely but “ sticking in the bark.” We think, therefore, that the plea in abatement was not proved. It was then the duty of the county court, having found the issue of fact on the plea in abatement against the defendant, to have rendered judgment against him in chief. The judgment of the county court is therefore reversed, and this court determine that the facts agreed and placed upon the record do not establish the defendant’s plea in abatement, and therefore adjudge that he do account with the plaintiff. Auditors were appointed in this court,-as is the settled practice in all actions of account, [504] or book account, when they have once come into this court, and only require to be sent to auditors. All cases, once brought into this court, upon exceptions, are finally disposed of here, unless a jury trial becomes necessary, or unless, by , , . , .... , the decision of this court, the case is placed in such a state that either party has a right to a trial by jury. In that event, only, the cause is remanded.