Blanchard v. Walker , 58 Mass. 455 ( 1849 )

Dewey, J.

We have no direct adjudication in the courts of this common wealth upon the question, whether the time for the entry of an action returnable before a justice of the peace expires with the expiration of the hour named in the writ. But the practice has been, as we suppose, to a great extent, to regard it as thus limited. The form of the writ, as prescribed by statute, clearly indicates the same; leaving a blank to be filled with the hour of the day for the court to be holden ; thus differing in form from writs returnable to the court of common pleas, or to this court We are of opinion, that this period of one hour is the proper period for entering such actions before a justice of the peace; and that if not thus entered, the defendant may refuse to appear, or may appear merely for the purpose of moving to dismiss the action. Such appearance having been made, in the present case, for this special purpose, and such motion seasonably made, but overruled, the joining issue and proceeding to trial, under the order of the justice, were not a waiver of the objection to the entry of the action, and the objection is now open to the defendant.

The proper entry is, however, that the verdict be set aside; and that the action be dismissed, with costs to the defendant