Flanagan v. Borg

64 Minn. 394 | Minn. | 1896

CANTY, J.

The statute provides one term of the district court in each year in Chisago county, to be held on the first Wednesday in October. G-. S. 1894, § 4912. In January, 1S83, the judges of the court made, signed, and filed with the clerk the following order: “It is ordered that a special term of said court for the trial of civil and criminal cases and issues of law be, and it is hereby,, appointed to be held in and for said county on the first Tuesday in May in each year until otherwise ordered.” A copy of this order was posted on the front door of the courthouse on March lr 1883, and was published four successive weeks, commencing February 23, 1S83, in a newspaper published in the county. Under this order a term of the court has been held on the first Tuesday in May every year since for the transaction of all business, including trials of issues of fact. The regular October, 1894, term was-adjourned to the first Tuesday in May following.

This action was after that adjournment, on April 25, noticed for trial for “the term of said court” to be held on Tuesday, May 7, 1895. The notice was served by plaintiffs’ attorney on defendant’s attorney. The latter promptly returned the same, and on the call of the calendar at the opening of the court on that day moved to strike the cause from the calendar on the ground “that said term, was not a legally appointed term” for the trial of cases “noticed for the first time for said term.” The motion was denied, and defendant excepted; the trial proceeded; plaintiff prevailed; and from an order denying his motion for a new trial, defendant appeals.

We are of the opinion that our statutes do not authorize the judges of the district court to provide by a standing order for the holding, year after year, of terms of court for the trial of regular issues of fact. G. S. 1894, § 5388, in our opinion, provides only for the appointment of special terms for the transaction of other business than the trial of such issues. The only section to which we have been referred that authorized the judges to appoint other terms than those appointed by the legislature for the trial of such issues is section 4850, which, it seems to us, requires a notice to be posted and published, as therein provided, before each term so appointed to be held. If such terms can be appointed to be held year after year by a standing order made, filed, published, and posted once for all, then it was wholly superfluous for the legislature to appoint all the general terms in all the counties of this state supposed to be ordinarily necessary for the transaction of business. The authority given by the statute is to appoint special, not regular, terms.

Under the circumstances we do not deem it necessary to consider the other questions raised on the appeal.

The order appealed from is reversed.