155 P. 1150 | Okla. | 1916
From an examination of the record it appears that on the 19th day of June, 1913, the defendant in error recovered a judgment against the plaintiffs in error by default upon a promissory note in a justice's court of Pontotoc county, and that thereafter, on the 18th day of August, 1913, the plaintiffs in error filed a motion in the justice's court to have said judgment vacated and set aside for the reasons set forth therein, and that on the 5th day of September, 1913, the justice overruled said motion, whereupon the plaintiffs in error prepared a bill of exceptions to the district court of Pontotoc county, which came on for hearing on the 14th day of February, 1914, and on said date the judge of the district court decided adversely to them and refused to vacate said judgment, and to reverse the judgment of the district court the plaintiffs in error have appealed to this court.
This appeal involves the powers of the justice of the peace. 24 Cyc. p. 403, is to the effect that:
"The office of a justice of the peace is one of great antiquity, and the jurisdiction of justices of the peace has varied from time to time depending either upon the terms of their commission or particular statutes. Justices of the peace were originally mere conservators of the peace, exercising no judicial function. It is said that by the Statute of 1 Edw. III, which is the first statute that ordains the assignment of justices of the peace by the King's commission, they had no other power but only to keep the peace. *322 But gradually their powers were enlarged, and they came to constitute a very important agency in the administration of local government in England. They were invested with judicial powers for the first time, it seems, by the Statute of 34 Edw. III, c. 1."
The same author (page 416) lays down the rule that:
"The powers of a justice of the peace are statutory, and cannot be extended by construction." Cassidy v. Brooklyn, 60 Barb. (N.Y.) 105, affirmed in
And on page 417 it is said:
"The judicial functions and duties of justices of the peace are confined and limited by statute, and the powers thereby conferred must be strictly construed."
See authorities in the note cited on that page.
The same author at page 440 says:
"The civil jurisdiction of justices of the peace is purely of statutory origin, and the statutes conferring jurisdiction will not be aided or extended by inference or implication beyond their express terms."
See authorities cited at note 71 of that page.
Likewise on page 604 the rule is laid down as follows:
"Except where authority is conferred on justices of the peace to grant new trials, the weight of authority is to the effect that they have no power to change or in any manner interfere with judgments which they have rendered."
See authorities in notes cited.
From the foregoing authority it must be apparent that the jurisdiction of a justice of the peace is purely statutory, and that the powers which he may exercise are *323 conferred by statute, and to determine whether or not a justice of the peace has authority to do a particular thing it is a settled rule of law that one must be able to point to some statute giving to him the right to do what it is contended he has the right to do.
Our statute dealing with the right of a justice of the peace to set aside a judgment is as follows (section 5459. Rev. Laws 1910):
"Default Set Aside When. — When a judgment shall have been rendered against a defendant, in his absence, the same may be set aside upon the following conditions: (1) That his motion be made within ten days after such judgment was entered. (2) That he pay or confess judgment for the costs awarded against him. (3) That he file an affidavit that he has a just or valid defense to the whole, or some part, of the plaintiff's claim. (4) That he notify, in writing, the opposite party, his agent or attorney, or cause it to be done, of the opening of such judgment, and of the time and place of trial, at least five days before the time, if the party resides in the county, and if he be not a resident of the county, by leaving a written notice thereof at the office of the justice, ten days before the trial."
By this statute it is clear that the motion to vacate a judgment must be filed within ten days after such judgment was entered. In the case at bar the judgment was rendered by default on the 19th day of June, 1913, the motion to vacate was filed the 18th day of August, 1913, and it is apparent that the justice of the peace, under the statute, did not have the authority to vacate said judgment, as the justice had lost jurisdiction of said cause, and the plaintiffs in error, by their failure and negligence, had suffered the time within which a judgment by default could be vacated to expire. *324
Having determined that the justice of the peace was without authority to vacate this judgment, it follows that the district court also, with appellate jurisdiction of this case, was powerless to render the relief sought, as the appeal was not had until the time allowed by statute for appeals had expired.
There being no error in the record, we recommend that the judgment be affirmed.
By the Court: It is so ordered.
