47 Vt. 616 | Vt. | 1874
The opinion of the court was delivered by
The questions presented for consideration are, whether the pretended continuance of the case on the 5th day of December, 1871, by the justice of the peace, operated as a discontinuance of it ? And if so, whether the defendant waived such discontinuance, and submitted himself to the jurisdiction of the justice court ? On the 5th day of December, 1871, the return day of the writ, the justice of the peace before whom the writ was returnable, entered a continuance of the case to January 8, 1872, without going, with the writ in his possession, to the place appointed for the trial. Such want of appearance by the justice with the writ, was a discontinuance of the case. The defendant need have given no farther attention to the case. The language of the statute, Gen. Sts. ch. 31, § 37, is explicit on this point. It provides : “ No judgment of a justice shall be considered regular and of binding force, unless he shall be present with the plaintiff’s writ at the place appointed for the trial, within two hours after the time set in such writ,” unless the case is regularly continued, in Ms absence, by another justice. The decisions of this court on the construction of this and other similar statutes in regard to the entry and continuance of an action in a justice court, have all been to the effect, that the failure of the justice before whom the writ was returnable, to be present with the writ at the place appointed for the trial, within two hours after the time set for the trial, ended his jurisdiction over the case, unless' the case was continued by another justice, according to the provisions of section forty-two of the same chapter. Brown v. Stacy, 9 Vt. 118; Phelps v. Birge, 11 Vt. 161; Crawford v. Cheney, 12 Vt. 567; Hinman v. Swift, 18 Vt. 315; Whitcomb v. Rood, 20 Vt. 601; Underwood v. Hart, 23 Vt. 120; Babcock v. School District, 35 Vt. 250; Bryant v. Pember, 43 Vt. 599.
The jurisdiction of the court having been once lost in this
Judgment affirmed.