Jennerson v. Garvin , 7 Kan. 136 ( 1871 )

The opinion of the court was delivered by

Kingman, C. J.:

This action was commenced before a justice of the peace on the 18th day of August, 1869, and was set for trial on the 23d of that month. On this last day the defendant (plaintiff in error,) applied for a continuance, which was granted, and the cause continued to the 22d of September. On that day he applied for and obtained a change of venue, and when the case was called for hearing on the 24th of September, by the justice to whom the cause had been transferred by the' change of venue, the defendant again moved for a further continuance which was granted, and the trial postponed to the 10th of November. On this day defendant moved to dismiss for want of jurisdiction, which was denied, and the case laid over to the 12th of November, when it was continued by agreement to the 9th day of December. On this day, the defendant appearing for the purpose of that motion only moved the justice to dismiss the cause for want of jurisdiction, which motion was granted, and judgment was given against the plaintiff for costs, amounting to $72.55. From this decision of the justice the cause was taken on error to the district court, and there reversed; and this judgment of the district court is now brought to this court for review.

The plaintiff in error claims that § 82 of the justices’ act, Gen. Stat., 794, compels the- discontinuance of a cause which by successive adjournments has been postponed more than ninety days from the return-day. This is probably not the true construction of the section ; but however that may be, the party at whose instance and by whose agreement the delay has been had, is in no position to make such a motion. He could not induce the court to adjourn itself out of jurisdiction, and then make of that fact a defense. If the justice had no jurisdiction by what right did he render judgment for $72.55 costs against the plaintiff?

The judgment of the district court is affirmed.

All the J ustices concurring.