28 Minn. 400 | Minn. | 1881
An action was commenced by this plaintiff against this defendant before one Sheppard, a justice of the peace. The summons issued and served was returnable April 20th. Before the return-day the justice had gone out of office, by reason of the expiration of his term, and had, as required by statute, delivered his docket to his successor, one Leo, who had been elected in his stead, and had entered upon the discharge of the duties of the office. On the return-day named in such summons, both parties appeared before Jus
Only two questions are involved: First, had the justice jurisdiction in the cause; and, second, was it error to tax costs incurred before the justice who issued the summons. The summons of Justice Sheppard did not subject the defendant to the jurisdiction of Justice Leo, nor give the latter justice any right to entertain or proceed in the action. Neither the command of the summons, nor any law, required the defendant to appear before any other magistrate than the one who issued the process. In the absence of a statute effecting such a result, an action pending before a justice of the peace upon his retirement from office is not transferred to another justice. The jurisdiction of Sheppard was at an end when he ceased to be a justice, and Leo could not have acquired jurisdiction by virtue of the proceedings had before the former justice. That action was no longer Us pendens when the parties appeared before the new justice on the 20th of April. Nor can the appearance of the parties before Justice Leo, and the. proceedings then had, have had the effect to continue and keep alive, or to have revived, the former action. So far as they relate to the
The statute provides: “Actions may be instituted before a justice of the peace, either by the voluntary appearance and agreement of the parties, or by the usual process.” Gen. St. 1878, c. 65, § 10. It was obviously the object of the statute to enable the parties to a controversy, of which a justice might by the ordinary process of his court acquire jurisdiction, to dispense with the delay and expense incident to jurisdictional proceedings, and, by mere consent ind summarily, to submit the matter for adjudication. This statute is scarcely more than embodiment, in the written law, of a principle which has generally been recognized as applicable without the aid of such a statute. Since the object of a summons is only to bring the party defendant into court, and since the same object is accomplished when he appears voluntarily without process, and submits himself to its jurisdiction, (Wasson v. Cone, 86 Ill. 46,) or when, the process or its service being irregular, he appears and makes no objection to the irregularity, it follows that when the subject-matter is one within the jurisdiction of the court, jurisdiction over the person may be conferred by consent; and it would seem to be settled by the great preponderance of authority, and to be consistent with legal reason, that such consent may be not only express, but may be implied from a voluntary appearance and participation in the proceedings before the court, without objection seasonably made. One may not thus voluntarily invoke the jurisdiction of a court, or seek the benefits of its exercise, and afterwards be heard to object that the court had not the right to adjudicate as to him. Wells on Jurisdiction of Courts, § 86; Lamberton v. Raymond, 22 Minn. 129; McCormick v. Pa. Cent. R. Co., 49 N. Y. 303, 309; Wasson v. Cone, 86 Ill. 46; Thornton v. Leavitt, 63 Me. 384; Brown v. Webber, 6 Cush. 560, 563; Fee v. Big Sand Iron Co., 13 Ohio St. 563; Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315; Grand Rapids, etc., R. Co. v. Gray, 38 Mich. 461; Carpenter v. Shephardson, 43 Wis. 406.
In the case under consideration, it is considered that the consent or agreement, which was necessary to give jurisdiction, is to be im
We are not unaware that in this decision we are making a departure from a former decision of this court, (Rahilly v. Lane, 15 Minn. 447;) but although we would not inconsiderately disturb a decision once made, yet, satisfied as we are that, so far as that case is not in harmony with the views here expressed, it is not consistent with legal reason, nor with the great weight of authority, and that it has hitherto been a source of serious embarrassment to the courts and the legal profession, we are compelled to overrule that case, so far as it is at variance with this decision, rather than, following only the rule .of stare decisis, determine this and other causes which may come
But since the proceedings before Justice Leo were not a continuation of the action commenced before Justice Sheppard, and as such former action had abated, the costs in that action ought not to have been taxed in this. Yet as the error may be corrected by a modification of the judgment, (Kates v. Thomas, 14 Minn. 460; Gen. St. 1878, c. 86, § 5,) it will not be necessary to reverse the judgment appealed from, altogether.
The judgment of the district court will be modified by deducting the item of $4.10 costs incurred in the action before Justice Sheppard, and as so modified it is affirmed. The cause will be remanded to the district court of Polk county, with directions to proceed accordingly.