Tongue v. Lloyd

Reese, O. J.

This action was commenced before a justice of the peace of Polk county. The summons was issued on the 30th day of August, 1909; the 9th day of September being set for the trial. On that day the parties appeared, and, by agreement, the cause was continued to October 9. On October 9 a further continuance was had to November 9, on the motion of plaintiff. On that day the cause was again continued to December 9 by agreement of the parties. December 9, the parties appeared, when, on motion of defendants, and over the objection and exception of plaintiff, a continuance was had for an additional 30 days, to January 8, 1910. Tiie objection to the continuance was based upon the ground that the order extended the continuances for more than 90 days from the return day of the summons. Plaintiff then presented the case to the district court by petition in error, upon the contention that the order Avorked a discontinuance and dismissal of the case, and was therefore final. This view seems not to have been entertained by the district court, and the petition in error was dismissed at plaintiff’s costs. Plaintiff appeals.

Defendants have filed no brief, nor have they appeared in this court further than to acknowledge service of the notice of appeal, and we are left wholly in the dark as to to their theory of the case, or the views of the district court.

Sections 960 and 961 of the code provide that a case may he adjourned for 30 days upon the application of either party, either on the return day or any subsequent day to which the cause may stand adjourned, “but not to exceed 90 days from the time of the return of the summons, upon compliance with the provisions” of the statute. If the adjournment, without plaintiff’s consent and over his objection, for more than 90 days worked a dismissal of the case, and the justice thereby lost jurisdiction to proceed further without the consent of the parties, the order was final, and the proceeding in error would lie. We arc not aware that this identical question has ever been before us. In Fischer v. Cooley, 36 Neb. 626, the final adjournment, beyond the 90 days, was had by the agreement of the parties to the suit, and, for that reason, it was held that jurisdiction avks not lost; but we said: “Under said section (961), when a justice of the peace adjourns a suit pending before him, without the consent of parties, for more than 90 days from the return day, it operates as a discontinuance.” In MaxAvell, Practice in Justices’ Courts (5th ed.) 129, it is said: “Without consent of the parties, the court has no authority to adjourn a cause more than 90 days from the return day of .the summons. An adjournment exceeding that time, without consent of the parties, operates as a discontinuance of the action” — citing Dunlap v. Robinson, 12 Ohio St. 530. While the exact question here presented was not inAmlved in that case, the logic of the opinion sustains the text in MaxAvell’s Justice Practice. In the body of that opinion it is said: “His (the justice) poAA’er of adjudication is derived from the statute, and, if not exercised within the time allowed by law, it is clearly lost; and the cause is no longer pending before him. The legal effect of such a failure in duty is a discontinuance of the action. So, jurisdiction may be lost by an adjournment of the suit, without consent of parties, for a longer time than the statute permits, Such unauthorized adjournment, or other neglect of duty by the justice, which prevents a hearing and determination of the suit within the proper time, it has been repeatedly held, works a discontinuance of the action.”

The judgment of the district court is reversed and the cause is remanded to that court, with direction to reverse the ruling of the justice of the peace, with costs to plaintiff, and retain the cause for trial, as provided by section 601 of the code.

Reversed.