Lincoln v. Cook

124 Mass. 383 | Mass. | 1878

Soule, J.

It is well settled and familiar law that it is competent for magistrates to amend their records, and that, when amended, such records are evidence of the truth of what they contain. Cook v. Berth, 108 Mass. 73. The amended record stated that the examination of the debtor was. adjourned to January 29, at 9 o’clock, A. M., with leave to the debtor to appear at any time between 9 and 12 o’clock, and that the magistrate held the proceedings open till 12 o’clock, and, while they were so open and pending, the debtor appeared, and the examination and proceedings were further adjourned till February 3. It has been held that if the debtor appears within the hour, the magistrate may postpone, keep open or adjourn the hearing. Sweetser v. Eaton, 14 Allen, 157. Carleton v. Wakefield, 111 Mass. 481. And it was intimated in Sweetser v. Eaton, that such action might perhaps be taken at the suggestion of the creditor, or on the magistrate’s own motion. The statute says the magistrate may adjourn the case from time to time, and shall have the same powers with respect to all other incidents thereto as justices of the peace or other courts have in civil actions. Gen. Sts. c. 124, § 16. The authority thus given is broad enough to cover any adjournment or postponement, or “ keeping open,” which the magistrate in his discretion shall think it proper to make, whether the party present assents to it or not, provided only it be made before the rights of such party have been fixed by the completion of an hour after the time appointed for attendance. If one party only appears, and the hour expires without any action by the magistrate to keep open, postpone or adjourn the proceedings, and the party who appeared departs, the jurisdiction of the magistrate to act upon the notice is at an end. Sweetser v. Baton, above cited. But, until the jurisdiction is gone, the matter of keeping the proceedings open, postponing or adjourning, is wholly one of discretion. We are of opinion, therefore, that the learned judge who presided at the trial erred in his instructions to the jury, that the action of the magistrate, in keeping the examination open after the expiration of an hour, was illegal, unless the permission to the debtor to appear at any time between the hours of 9 and 12 o’clock was known to and acquiesced in by the cred-tor or his attorney. The legality of the action of the magistrate did not depend on what he bad said to the debtor, but on the fact that keeping the proceedings open was within his discretion, under the statute. New trial ordered.