Nelson v. Campbell, 1 Wash. 261

Nelson v. Campbell

1 Wash. 261 | Wash. | 1890

Lead Opinion

The opinion of the court was delivered by

Dunbar, J.

If the appellee, in support of his judgment, relies upon the commencement of the action before Justice Jones, and which was tried before Justice Soder-berg on the 28th day of December, 1888, (and the case has evidently been tried upon that theory, from the fact that the costs in Justice Jones’ and Soderberg’s courts are incorporated in the judgment rendered by Justice Rivers), his case must fail; for the period from December 28, 1888, to March 6, 1889, the date to which the case was continued, is more than sixty days; and under 1769 of the code, a justice of the peace has no authority to continue a case for more than sixty days; and upon sucha continuance the court lost jurisdiction of the case; for the rule of liberal construction applied to proceedings in a justice’s court does not extend to jurisdictional questions.

*263If, on the other hand, it is contended that it is a new ease, commenced at the time of the filing of the complaint by Justice Rivers, we are confronted by § 1712 of the code, which provides that, in the commencement of civil actions before a justice of the peace, either by service of a summons or by service of a copy of the complaint and notice, the defendant must be cited to appear at a time which shall not be more than twenty days from the date of filing the complaint. If Justice Rivers had any authority at all to file the old complaint, it was by reason of his succession to the office of Justice Soderberg on the 4th day of March, 1889, at which date the complaint would come into his possession, and would be presumed to be filed, if at all. The mere fact that he did not place the file mark on it until March 25th, cuts no figure whatever. More than twenty days, then, having elapsed between the filing of the complaint, March 4, 1889, and April 18, 1889, the notice was in conflict with the requirements of the statutes.

On either supposition, the court was without jurisdiction and the judgment was void. We do not think that the appearance made by the defendant (appellant) was such an appearance as would give the court jurisdiction of the case.

The judgment of the court below is reversed.

Hoyt and Stiles, JJ., concur.

Dissenting Opinion

Scott, J.

(dissenting). —I do not agree with the opinion rendered in this case. Section 1769 of the code only applies to a continuance upon the application of one of the parties. A cause may be continued by a justice of the peace for a longer period than sixty days with the consent of both parties. The record is silent as to why the continuance was granted, or at whose request, but as both parties were present in court, it must be presumed, in the absence of any objection thereto by the party complaining, that the adjournment from December 28, 1888, to March 6,1889, was with the consent of both parties.. After jurisdiction is once *264shown to have been obtained, the same presumptions in favor of the regularity of the subsequent proceedings apply to justices’ courts as to courts of record. The fact that the justice who continued the cause was succeeded in office by another justice, prior to said March 6th, would not affect the proceeding. Section 1704 makes provision for such cases.

The court lost jurisdiction, however, by a failure to make some sufficient disposition of the cause on March 6th, at the hour to which it had previously been adjourned. Nor could the second notice have operated to revive the suit, had the defendant failed to appear, or had he specially appeared and objected thereto. The record shows, however, that the defendant did%ppear on April 18th, in response to the notice. The plaintiff also appeared, whereupon, the record states, “ defendant’s attorney files a motion for continuance; motion granted, and cause continued to April 19, 1889, at 1 o’eloekp. M. Subpoena issued for one witness,” etc. This appearance of the defendant and asking for an adjournment was a general appearance, and waived all prior irregularities. The errors complained of only went to the jurisdiction of the person of the defendant, and not to the subject-matter of the action. The defendant’s appearance revived the suit, and it was treated by the court and parties as a continuation thereof. The objection, that the court had lost jurisdiction, and special appearance to urge the same, April 19th, came too late. It should have been made in the first instance. As to the effect of a general appearance in an action, see Shaffer v. Trimble, 2 Greene (Iowa), 464; Bazzo v. Wallace, 16 Neb. 290; Christal v. Kelly, 88 N. Y. 285; Toland v. Sprague, 12 Pet. 300, 329; Orear v. Clough, 52 Mo. 55; Handy v. Insurance Co., 37 Ohio St. 366. Section 1712 of the code provides that a suit may be commenced by the voluntary appearance and agreement of the parties, etc.

*265The judgment of the distinct court, sustaining the judgment rendered by the justice, should have been affirmed.

AndeRS, C. J., concurs in dissenting opinion.