Brandies v. Robinson

Lyost, J. The circuit court must have held that,'because the justice proceeded with the trial 'before one hour had elapsed after the time specified in the summons, he thereby lost jurisdiction of the case. This was error. The statute provides, that, “ upon the return of the process duly served, the justice shall wait one hour after the time specified in such process for the appearance of the parties, unless they sooner appeal’.” R. S. 1858, ch. 120, sec. 45. The appearance of this statute is not necessarily a formal appearance to the action, to be entered in the docket of the justice, but the personal appearance of the parties before the justice. The hour of grace is for the benefit of both parties — plaintiff as well as defendant, — and is given to protect a party, who for any cause fails to reach the justice’s office at the precise time specified in the summons, against a judgment by default. The justice must wait one hour for the parties unless they sooner appear; but if they appear, that is, if they are in court before the expiration of the hour, the statute has no' operation, and the trial may regularly proceed. In this case, the justice waited until the defendant was before him, and that is all the [466] statute requires. Not only did the justice have jurisdiction to try the case and render judgment therein, but the record fails to disclose any error in his proceedings. But on this appeal we have only to deal with the question of jurisdiction. Lewis v. Larson, ante, p. 353, and cases cited. By the Court. — The judgment of the circuit court is reversed, and the cause remanded with directions to that court to affirm the judgment of the justice.