Kelly v. Morse

3 Neb. 224 | Neb. | 1874

Lake, Ch. J.

It is urged as an objection to this judgment of the probate court, that it does not appear to have been rendered at a regular term as is required by the act regulating the practice in that court, in cases where the amount claimed exceeds the jurisdiction of a justice of the peace.

The record shows that the judgment was rendered on tire ninth day of December, and inasmubh as the statute then in force on the subject required the court to be held on the first Monday of that month, it is urged that the record ought to show that the term actually commenced on that day, and had been regularly continued to the day the judgment was rendered.

There is no force to this objection. The record sets out enough to show that the court was in regular session when the judgment was pronounced. The proceedings on the award are certified by the judge to have taken place at the December term, 1871. This is definite enough, without stating that the court had been regularly adjourned from day to day from the commencement of the term until the case was finally determined.

The only remaining objection is that no notice was given to Kelly before proceeding to act on the award. This was not necessary. The statute provides that “ the court may require actual notice to be given to either party, when it appears necessary and proper, before proceeding to act on the award.”

The position taken by counsel that the word “ ma/y ” in the sentence just quoted from the statute should be construed as “ must,” is altogether untenable. It would defeat the very object and intent of the legislature, which, doubtless, was to leave it to the court to say, in each particular case, whether notice should be given or not. The words “ when it appea/rs necessary and proper,” found in the context, would be meaningless if the construction contended for should be given.

Without doubt the word “map” in public statutes should be construed as “must” whenever it becomes necessary, in order to carry. out the intent of the legislature, but in all other cases this word, like any other, must have its ordinary meaning. Minor v. The Mechanics’ Bank of Alexandria, 1 Peters, 46.

We conclude, therefore, that the matter of notice is left to the sound discretion of the court, and so long as there is no abuse of discretion shown whereby an injury is done, the omission to give it would furnish no ground for disturbing the judgment.

In this case there appears to be no reason at all why a notice should have been given. The proceedings are quite regular, in fact unusually so, and Kelly knew that by the terms of the submission; the award of the arbitrators was to be filed at the December term of the court, so that judgment should be rendered at that time.

There is no error in the record, and the judgment of the district court must be affirmed.

Judgment affirmed.

The other justices concur.