Call v. Mitchell , 39 Me. 465 ( 1855 )

Tenney, J.

— This action was brought, to be tried by-Elias Dailey, a justice of the peace, on Eeb. 21, 1853. On the return day of the writ, the justice was necessarily absent, and Gyrus Cotter, another justice of the peace for the same county, continued the action to March 19, 1853, at which time justice Bailey was again necessarily absent, and justice Cotter being otherwise engaged, continued the action to April 9, 1853. On the day last named the parties appeared, and the general issue was pleaded and joined, and upon a hearing, judgment was rendered for the defendant that he was not guilty and for his costs; from which an appeal was taken by the plaintiff, and brought into this Court.

If a justice of the peace, by reason of sickness or any unforeseen cause, is unable to attend at the time and place by him appointed for holding a court, any other justice in the county, &g., may continue such cause once, not exceeding thirty days, &c., and in case the disability of the justice, to whom the writ was returnable, is not removed at the expiration of the time of adjournment, such action may be entered before, and tried by any justice of the peace of the same county at the time and place to which it was adjourned. R. S., c. 116, § 14.

The justice who tried the cause, had twice continued it, and the hearing was more than thirty days after the return day of the writ. The justice had no jurisdiction when he entered the action, and heard the parties. Spencer v. Perry, 17 Maine, 413.

It is however insisted by the plaintiff, that the defendant having pleaded the general issue, and upon a hearing having obtained a judgment in his favor, has waived all defects and irregularities in the proceedings. R. S., c. 116, § 30, has provided, that in all cases, except those mentioned in the first section, the defendant shall plead the general issue, and need not file any brief statement. By doing what the stat-lite required, the defendant has lost none of his rights. But an express waiver of all objection to the jurisdiction of the justice, or consent that lie should exercise it, does not confer jurisdiction, when none existed by law. Williams v. Burrill, 23 Maine, 144.

After the appeal was entered in this Court, it was proper for the defendant to appear and present his rights and have them protected, notwithstanding the trial was a nullity. "Without the irregularities being brought to the attention of the Court, the defendant might be defaulted, and judgment be entered against him. The authorities referred to by him, are decisive upon this question. The dismissal of the action was a termination of proceedings thereon. The defendant was the prevailing party, and is entitled to his costs in this Court. Exceptions overruled. Judgment in favor of the defendant, for costs.