Stadler v. Moors

Cheistiancy J.: As to the first error assigned, we do not think the absence of the justice for a few minutes more than the hour after the time to which the cause had been adjourned, for the cause stated in the return, could be allowed to operate as a discontinuance, though the defendant might have remained at the office till the expiration of the hour, and then left. But in such case, if the defendant had gone away ignorant of the cause of the justice’s absence, the justice should have notified him of his return at the earliest opportunity, and should have required proof that he had received the notice before taking any other step in the cause: and if the defendant had, in good faith, dismissed his witnesses, he would on showing cause be entitled to the necessary time to procure their attendance. [268] The justice was absent in the discharge of an official duty which was quite as imperative as' the trial of tho suit. Both duties could not be perforare I at the same instant. The view we have taken is the only one which would enable him to perform both. See Hunt v. Wickwire, 10 Wend. 102. But whether the return of the justice contains any proper evidence that defendant was notified of the cause of the justice’s absence, or of the fact of his return to the office, may well be doubted; but we do not propose to rest the case upon this ground, because the objection covered by the second assignment of error is, we think, fatal to the justice’s jurisdiction. The adjournment from the twentieth to the twenty-sixth day of January, was granted in the absence and without the consent of the defendant, and without the showing of any cause whatever. It was an adjournment unauthorized by the statute, and without necessity. It is claimed to have been beneficial to the defendant. But if the defendant had been properly notified that the justice had returned, and was ready to proceed, he had a right to decline any defense, and allow tho plaintiff to proceed ex parte, without being subjected to the costs of another adjournment, and the re-attendance of tlieplaintiff’s witnesses. It can not therefore be said to be for tho defendant’s benefit. Though the justice might have held the cause open for a reasonable time, and continued the cause from day to day in the progress of the trial, as the necessities of the case might require, he had no right, without any such necessity, and without entering upon the trial, to adjourn it over for several days, as in this ease, unless at the instance of a party, and upon cause shown as required by the statute. The right expressly given to the justice (by § 90) to adjourn of his own motion on the return day, cuts off all implication of an intent to give him the like power in any other stage of the case. [269] But it is urged by defendant in error, that by § 86 {Comp. L. §3738) before the amendment of 1861, a party applying for an adjournment was not bound to show any cause, unless a former adjournment had been had on his own motion. But this provision applies only to the showing of diligence, and leaves in full force the previous portion of the • section requiring cause to be shown. In the State of New York, from whose statutes these provisions in reference to adjournments, and most of the •other provisions of our justices’ act, have been almost literally copied, it has been long and well settled, that an adjournment, unless by consent, without some cause recognized by the statute, or without showing cause when the statute has given it only on cause shown, or without showing diligence wrhen that is required, or upon the justice’s own motion except on the return day, operates as a discontinuance of the suit: — Gamage v. Law, 2 Johns, 192; Proudfit v. Henman, 8 Johns. 391; Hilmore v. Sudam, 7 Johns. 529; and see Kimball v. Mack, 10 Wend. 497; Horton v. Auchmoody, 7 Wend. 201, and 2 Cow. Treat. 856. In adopting these provisions from the statutes of New York, it is fair to presume that the Legislature ’ were aware of the judicial construction they had received, and that the legislative intent was in accordance with these decisions. The judgment of the Circuit Court must be reversed, with costs. The other Justices concurred.