37 Kan. 753 | Kan. | 1887
The opinion of the court was delivered by
This is an original proceeding upon mandamus, to compel the issuance of an execution upon a judgment by a justice of the peace of Cowley county. From the alternative writ, and the answer, we learn that the judgment was rendered on June 12, 1886, by W. D. Kreamer, a justice of the peace, in an action of replevin, wherein C. M. Scott was
“The justice before whom a cause has been tried, on motion of the party aggrieved, at any time within five days after the*755 decision or verdict, shall vacate the decision or verdict and grant a new trial for the same reasons and upon the same terms and conditions as provided in the code of civil procedure in like causes; and he shall set a time for a new trial, of which the opposite party shall have at least three days’ notice.” (Laws of 1885, eh. 152, §3.)
Under this statute, the motion for a new trial should have been decided within five days after the rendition of the judgment on June 12, 1886; but although it was not determined until the seventh day after the rendition of the judgment, we think that the decision of the motion at that time was not void; and further, that it is too late for the plaintiff to raise the question of jurisdiction. Burress moved promptly and properly to obtain the new trial. Within two days after the judgment was rendered, the motion was made. Proper notice was given, and a hearing had on the motion within four days after the rendition of the judgment. He complied with every requirement of the statute and of the court, and did all that he could, and ought not to be deprived of his right under the motion on account of the delay of the officer. He had a right to expect that the' decision would be made within five days; and before the expiration of that time no action could be begun or maintained to compel the justice to determine the motion. When the full five days had passed without a decision, a proceeding to compel action could have been instituted and maintained ; and if the decision might then have been made under the order of a court, a voluntary decision by the justice granting the motion for a new trial upon the seventh day, and which has been consented to, cannot be regarded as void.
Stewart v. Waite, 19 Kas. 218, is quite analogous to the present case. There a new trial was had before a justice of the peace, and the case taken under advisement and judgment rendered more than four days after the case had been tried. Section 115 of the justices code requires that in such cases the justice should enter the judgment on or by the fourth day after the close of the trial; and it was held that the entry of the judgment was erroneous and reversible for irregularity in
However faulty the action of the justice may have been, it. is now too late for the plaintiff to make objection. Since the new trial was allowed he has acquiesced in the decision, and submitted his cause and person to the jurisdiction of the justice, and also to the district court. The cause was twice continued, and twice the time for the second trial was agreed on by the plaintiff. He made no objection to the jurisdiction at either time, nor when the second trial was had; and when the judgment was given against him on that trial, he transferred the cause to the district court by appeal. After this action the plaintiff is not in a position, and cannot be heard, to allege that the court had no jurisdiction to make the order. (Haas v. Lees, 18 Kas. 449; Shuster v. Finan, 19 id. 114; Miller v. Bogart, 19 id. 117.)
The peremptory writ will be denied.