Harrison v. Chipp

Walker, J. The first question presented by this record, is, whether the justice of the peace had the right, after hearing the evidence, to take the case under advisement. The statute has conferred the authority to continue a cause before a justice of the peace for the purpose of procuring evidence, but the mode is prescribed by the act itself. There is no provision of the statute authorizing a justice of the peace, after'the evidence is heard, to continue the cause for any purpose. And although before the evidence is heard, the parties may consent to a postponement of further proceedings until a time agreed upon, the justice of the peace can have no such power after the cause has been heard, nor can the parties consent that the decision may be indefinitely postponed. The 28th section of the statute has required that the justice, upon hearing the evidence, shall proceed to render judgment, and an unreasonable or indefinite postponement of the cause is not authorized or contemplated, and if granted or taken without the consent of parties, it must be held to work a discontinuance of the cause. Green v. Angel, 13 J. R. 469. After the evidence was heard, the .justice had no power to indefinitely postpone the announcement of his decision, nor could such a power be conferred by consent of the parties. And when the justice of the peace, in this case, took the case under advisement indefinitely, the cause became discontinued, and he thereby lost all jurisdiction to proceed until the parties were again before him by service of process or the entry of appearance. The law designs that the parties shall have the right "to be present when every step is taken, and the officer has no power to deprive either party of that right. In this case, the justice of the peace, by the indefinite postponement of the cause, lost all jurisdiction over the parties, and was unauthorized to proceed to render the judgment. It being unauthorized, was not binding on the parties, and was void. Again, the petition is loosely drawn, and falls short of the precision and certainty of statement required to authorize this writ. It fails clearly and certainly to point out in what the injustice consists. It only in general terms alleges that the defendant owed plaintiff nothing. He does not show that he introduced evidence, or did anything to defend himself before the justice, or if he was unable to procure his evidence on the trial, he fails to state the reason. He may have had an abundance-of evidence at hand to defeat a recovery, and neglected to introduce it. If so, the judgment was the result of negligence. The mere employment of an attorney to attend the trial, is not evidence of diligence. The statute requires the petition to state the facts, and to be verified by the oath of the party. This precludes the use of affidavits of the facts, or any portion of them by others. For these reasons the writ of certiorari should have been quashed and the appeal dismissed. The judgment of the court below must be reversed, and the cause remanded. .Judgment reversed,.