State v. Roberts

8 Nev. 239 | Nev. | 1873

By the Court,

Belknap, J.:

The legislature of the State of Nevada at its fourth session appointed the first Monday in 'January, June and October as the days for the commencement of the terms of the district court in the County of Washoe. The district judge did not appear at Reno, the county seat, for the purpose of holding the June term of court until the twenty-second day of June; nor was there any pretense to adjourn court at any time prior to that date in compliance with the provisions of section 52 of the act concerning courts of justice and judicial officers, as amended March 5, 1869. At the term thus Rolden the defendant was tried; and the only question necessary to a determination of this appeal is whether he was tried' at a legal term of court.

Amended section 52, referred to, reads as follows: “If no judge attend on the day appointed to hold the court before noon, the sheriff or clerk shall adjourn the court until the next day at ten o’clock, and if no judge attend on that day before noon the sheriff or clerk shall adjourn the court until the following day, and so on from day to day for one week; if no judge attend for one week the sheriff or clerk shall adjourn the court for the term; provided, before the expiration of one week the judge shall order by letter or telegram to adjourn the court to any day within the term,sthe sheriff or clerk shall adjourn the court to the day so ordered.”

The purpose of this statute is to prevent a loss of the term in case of the failure of the judge to attend on the first day of the term. “Leave this section out of the statute and the loss of a term is the consequence of a failure of a judge to appear on the day appointed for holding the court. ” People v. Sanchez, 24 Cal. 17. Hence the term was lost unless saved by the proceedings at Washoe City.

Section 18 of the act before referred to provides that “the terms of the district court shall be held.at the county seat of the several counties. ” In exceptional cases the judge is authorized to hold court at a place other than the county seat; but it is not pretended that any of tbe statutory exceptions existed in tbis case. Tbe intention of tbe legislature in prescribing tbe time for tbe commencement and tbe place for bolding tbe terms of tbe district court was to attain certainty. Tbe principle of a fixed notice by tbe legislature rests upon public convenience; otherwise suitors, grand and trial jurors and others interested in tbe proceedings of tbe court would be kept in attendance upon an uncertainty of time and place. “ Certain fixed times and places ” were said by Spelman to be essential to tbe existence of a court; and these essentials have been recognized by lexicographers, text-writers and judges ever since bis time. It is indispensable to tbe validity of a judgment that it be rendered at tbe time and place prescribed by law: tbe proceedings in tbis case were therefore coram non judice and void.

Tbe judgment of tbe district court is reversed, and tbe cause remanded for a new trial.