Fortier v. Ball

Baker, Judge, delivered the opinion of the court. This action was instituted before a justice of the peace to recover the value of a stock hog which was killed by the negligence of one F. Moore, who, it is claimed, was at the time the servant of the [27] defendant, and in the discharge of his duties as such. The case was tried before the justice and a jury. After testimony was heard, the justice, on a motion of the defendant, non-suited the plaintiff. Two days afterward, at the instance of the plaintiff, the justice set the non-suit aside and ordered a new trial. The second trial was had on the 20th day of April, 1867, before the justice and another jury, both parties being present. It resulted in a judgment for the plaintiff for twenty-five dollars. Thé defendant appealed to the Circuit Court of Jefferson county, where the case was again tried and a judgment rendered for the plaintiff for fifty dollars. The defendant removed the case to the District Court by writ of error, where the judgment of the Circuit Court was reversed. The District Court assigned two reasons for reversing the judgment of the Circuit Court. The first is that the justice had no power to set aside the jugdment rendered by him at the first trial, and that it is still a valid subsisting judgment. The second is that the evidence does not establish the relation of master and servant between defendant and said Moore. It is doubtless true that justices of the peace have no power conferred on them to set aside non-suits except where they are rendered for non-appearance. But is equally true that they have no power to render an involuntary non-suit when a jury has been impaneled in the case. In rendering the judgment of non-suit in this case, the justice acted without authority and in plain violation of the rights of the plaintiff. As the non-suit was granted at the instance of the defendant, he has no right to complain that it was set aside. If the order setting the non-suit aside was void for want of authority to make it, the judgment of non-suit was also void for the same reason. The defendant appeared at the second trial before the justice and took his chances there; appealed the case to the Circuit Court, where he had another trial, without complaining of the action of the justice in setting aside the first judgment, and for the first time sets up this unauthorized judgment of his own procuring in the District Court as a bar to the plaintiff’s right to recover. This he will not be permitted to do. [28] We think that there was sufficient evidence tending to prove that Moore was the servant of the defendant to justify the court in submitting the question to the jury. The instructions complained of were properly given. The judgment of the District Court is reversed. The other judges concur.-