Kincaid v. Mitchell

| Mo. | Apr 15, 1840

Opinion of the Court delivered by

McGirk Judge.

This was an action of forcible entry and detainer brought before a justice of the peace for Platte county. On the day appointed by the justice, in the summons, for the trial of the cause, the parties appeared, and a jury was sworn, who heard the evidence but could not agree in their verdict.— Therefo:ethe justice discharged the jury and appointed, a subsequent day for the trial, and adjourned the cause over to that day. About five days before the arrival of that day, the plaintiff removed the cause to the circuit court by a writ of certiorari; when the cause came to the circuit court, the defendant moved the court to dismiss the cause for the reason, that the certiorari would not lie in such a case, and could only lie, where it is presented to the justice before the day set by the justice in the summons for trial; and that the - certiorari came too late in this case, although, it was presented to the justice before the day .of trial as fixed by the adjournment.

The circuit court sustained this motion and dismissed the .Gause, and adjudged costs against the plaintiff

Under Uio 1 he'"nit”socu <jf tho act of IH3ÍÍ (Laws of ting to ford-data.!ner üvf proceedings mu y bo romo-, vod to tho cir-euit court by certiorari, at any time boa'ppointod^y thejusticefor the hearing of tho causo, day°bo°thoin't one named in which the tri^is adjourn-

i'o reverse this decision the cause is brought to this court. The only error relied on is embraced in the correctness of the dismissal.

The question presented for the consideration of this court is a narrow one, and grows out of the construction to be given to an amendatory act of the General Assembly of this State, passed the 28th January 1839, entitled, “an act to amend an act concerning forcible entry and detainer,” see page 45 of acts of the session, 1838-9.

The 1st section of the act declares, that the proceedings under the act to which this act is an amendment, may be removed to the circuit court of the county by certiorari to be issued by the clerk, and served on the justice at any time before the day of trial, subject to the restrictions and limita tions hereafter provided. In this case the writ was issued and served on the justice before the day set for trial by the justice’s adjournment, but after the day named in the justice’s summons, as the day of trial.

Mr. Adams, of counsel for the appellee, Mitchell, insists that the day named in the justices writ, or summons, is the day of trial before which the certiorari must be served on justice,'and that the day appointed by the adjournment not tlie day of trial meant by the statute. I think this interpretation of the statute is wrong. It seems to me, that the spirit and intention of the act is that, if at any time before the day arrived, which may be appointed by the justice for hearing the cause, the certiorari is served on him it is m time. The object of the act was to enable the parties to re-m0Te their case to a tribunal where more learning in Lav/ matters could be brought in requisition than is usually found ' . , . belore justices oí the peace, and the amendment was mtend-e¿ enable them to do so. But t.iat this should be done due time before the parties and their witnesses should convene themselves before the justice for the trial. It seems me nothing is gained by a different construction of the . , c . . , , . , , . . , statute; and by requiring the tiling to be done the day be-^ore’^ie just^ce and parties are relieved from further attention to the matter. The words of the statute are, “be-the day of trial,” is it true that there can be but one day of trial! It cannot be true, unless the justice is denied the power of adjourning the cause, and this is not attempted. 1 ■ 1 . .

The day named in the summons for the parties to appear before the justice cannot be the day of trial unless a tiial takes place, yet the words “the day of trial,” are used, nor can any adjourned day be the day of trial, unless a trial actually takes place. According then to the literal words of the statute, no certiorari could ever be taken, for when the cause is removed to the circuit court by such writ there never has been a day of trial at all. Hence, I am of opinion, that the law requires the party to remove his case before a trial is had at all; and to make the matter more convenient to the parties, witnesses, and justice, the party must act'at least one day before the day arrives, when the cause is to be heard, tried and determined, no matter whether that day is fixed by the appointment in the justices summons, or by the justices adjournment of the cause. My opinion therefore is, the circuit court of Platte county erred in dismissing the cause, and that the judgment of that courtis reversed,jmd the cause remanded, with directions to that court the cause and proceed to trial.