Johnson v. Kingsbury , 28 Vt. 486 ( 1856 )

The opinion of the court was delivered by

Redeield, Ch. J.

This case comes before the court upon demurrer to the declaration. The case, attempted to be made, is certainly one of new impression. . It is attempted to be maintained upon the authority of those cases where a party sues out process, returnable before a justice, and then omits to enter his action, by which the defendant is deprived of costs, after having incurred expense in preparing for trial. But it seems to us the present case differs essentially from that class of cases. Here there not only is no positive wrong alleged against the defendants, but it seems to us difficult.to imply any. If the stiff had been set so near the end of the official term of the justice, as to involve the probability that he would not be able to finish the proceeding, it might bo said he should be held liable for a result which he might reasonably have anticipated. But here it would seem probable the writ was sued out before the question of the re-election of the justice was determined, being alleged to have been on or about the sixth day of September ; and it was made returnable upon the twelfth day of September, leaving nearly three months in which to finish the case • a term amply sufficient, in all reasonable probability.

The course of the litigation is nothing for which the defendants were responsible. That was controlled by an agency superior to them, and over which they were not expected to exercise dominion, and for whose errors or imperfections they were not, in any sense, responsible. The case being tried upon the 12th of September, the 26th of the same month, and the 28th, 29th and 30th of November, by jury, who were unable to agree, and being finally, by agreement of parties, continued on trial six hours beyond the official existence of the justice, it was abandoned by both parties, it would seem.

How there is anything in all this, of which the plaintiff can justly complain, it is certainly difficult to conjecture. It is not alleged that he had any just defense to the claim in the former suit. . From the course of the litigation we may fairly presume, perhaps, that he intended to defeat the recovery, and that he acted in good faith. But if the thing is to be determined by mere intendment, it seems to us an equal chance that he might or might not have failed in his defense, if the suit had been pushed through. It seems, at all events, a reasonably fair presumption, that it was a mercy to the plaintiff, and equally to the defendants, that the litigation ceased as it did, and when it did.

The plaintiff here certainly could not complain that the justice should continue to take cognizance of the cause, up to the utmost limit of his official existence. The act of 1851 does not authorize any other justice to assume the jurisdiction in anticipation of his speedy demise, because he probably may not be able to finish the trial, but only to take cognizance, “ upon proof of the expiration of said term of office.” And the second justice is to make a record of such expiration as the basis of his own jurisdiction. He could not interfere then until that event transpired. And it is very obvious that the statute has no natural fitness of application to any such case as the present, or to any case, except one where the writ is issued in one official year, returnable in another, where the justice is not re-appointed. The words of the statute are, “ whose term of office shall expire before the trial of said action.” This action had been sufficiently tried before the justice’s term of office expired, but it was still pending and in this • respect the statute may be said to apply. But if the statute applies to this case, it must equally to one where the trial is before the court; and it would certainly present a very awkward and somewhat farcical proceeding, to have another justice enter upon the jurisdiction of a cause in the midst of a trial, by the first justice ; but perhaps it is not impossible to give it even that application. It would certainly involve more difficulties than we are now prepared to meet. But there are two unanswerable reasons, to my mind, why, in the present case, no fault is attachable to the defendants for not pro* curing a justice to assume the jurisdiction of this cause, under the circumstances.

1. If the jurisdiction were to he transfered, it should he done in the precise condition in which the expiration of the official term of the first justice left it. And, in the present case, by consent and agreement of parties, the case continued upon trial for six hours, as a mere arbitration. And if this can he done for that time, it may he extended to any time. The statute evidently makes no provision for another justice assuming the cognizance of a cause which has been even partly tried by arbitration.

2. There is nothing in the act of 1851 which makes it the duty of one party more than the other, to call in a sfecond justice. The defendant, in that action, if he chose to continue the litigation, might as well have called in another justice as the plaintiff; and his not doing it, seems a sufficient indication that he was content to let the matter stop.

The parties seem both to have become wearied of the litigation, and if their ill feeling did not expire with the official life of the justice, they seem, at all events to have given in, and acquiesced in the result.

Judgment reversed and judgment that declaration is insufficient, and that the defendants recover their costsi