Goodbar, White & Co. v. Owen

Cooper, J.,

delivered the opinion of .the court.

That the part of § 2194 of the code of 1880, providing for the trial of a cause before a justice of the peace at any reasonable time other than the regular term, when the plaintiff or defendant is a non-resident, and it shall be shown by the oath of either party that a delay of the trial to the regular term will be of injury to him, authorizes the writ to be made returnable at such “ reasonable time,” is made entirely clear by §§2196 and 2197. By §2196 it is provided that the summons shall' be executed five days before the return-term, “ and any summons issued within five days before its return-day, shall be made returnable to the next succeeding term of the court after that, to be held within five days, unless a shorter day shall be named, in pursuance of the provisions for a trial without delay, in the case of non-resident or transient persons.” The language of § 2197 is, “if such process shall be executed less than five days before the return-day, except as aforesaid,” etc. It is thus made manifest that the summons in cases falling within the provisions of § 2194 may be made returnable at the “ reasonable time” named by the justice.

What is a reasonable time within the meaning of the law, is a question for the determination of the justice of the peace, by whom it must primarily be decided, and it follows as a corollary that the service of the writ upon the defendant must be held to give the court jurisdiction of the defendant, or the anomaly would be presented of a court deciding a question before acquiring jurisdiction of the defendant. If the justice of the peace had jurisdiction of the subject-matter, as to which there is no controversy, and of the defendant, which, as we have said, it must be held that he did, the appeal to the circuit court carried to that court the right and jurisdiction “to try the cause anew on its merits.” . Code 1880, § 2354. The circuit court, by the appeal, having jurisdiction of the parties and the subject-matter, should have proceeded in the trial of the cause on its merits, for it is only where the justice did not have jurisdiction, and not where he makes an erroneous decision within his jurisdiction, that the cause should be finally dismissed. Code 1880, § 2354.

If the defendant desired to challenge the decision of the justice on a question of law, his remedy was to invoke the revisory power of the circuit court by certiorari; having appealed, his right is only to a new trial on the merits.

Judgment reversed, and cause remanded to the circuit court.