Shipman v. Mears, 15 N.C. 484, 4 Dev. 484 (1834)

June 1834 · Supreme Court of North Carolina

15 N.C. 484, 4 Dev. 484

Daniel Shipman v. Jonathan Mears.

A Justice of tlic Peace may, under the act of 1803, (Rev. ch. 627, $ 3,) postpone a canse pending before him, for thirty days, excluding Sundays.

This was an action commenced by a warrant in the common form, in which the plaintiff sought to recover the amount of a former judgment; the warrant was dated the 8th of May, 1832. On the second of June following, an endorsement on tito warrant was made of the following purport: “Postponed until the “4th day of July next, then to be tried in Elizabeth-town.” On that day, the Justice nonsuited the plaintiff reversed the former judgment, and issued a super-sedeas to the constable, and process to the parties to appear and litigate the matter anew; and within thirty days thereafter, the first judgment was affirmed, and the defendant appealed to the County Court; where the judgment of the justice was affirmed, and the defendant appealed to the Superior Court.

On the last circuit at Bladen, before His Honor Judge Seaweei, the cause was tried on nil debet, and the plaintiff had a verdict. The counsel for the defendant then insisted that the plaintiff was not entitled to recover, because the justice having continued the cause for more than thirty days, by the postponement from the 2d of June to the 4th of July, the warrant became thereby inoperative, and all subsequent proceedings thereon were void. But his Honor held that the third section of the act of 1803, (Rep. ch. 627) restricting continuances of causes before single magistrates to thirty days,was to bo construed in connexion with the sixth section of the act of 1794, (Rev. ch. 414,) whereby warrants wore to be returned within thirty days “ Sundays excepted,” and that as there were not thirty judicial days between the 2d of June and the 4th of July following, the warrant was properly constituted at the time the judgment was rendered. His Honor was further of opinion that the jurisdiction of the magistrate did not depend upon the continuance being for a period not exceeding thirty days, that the act was directory to prevent a surprise upon either party, and if after a postponement of more than thirty days a judgment should be confessed, or if the postponement should be by consent, that the justice would have jurisdiction to act, and the parties would be bound, and therefore, it was incumbent upon the defendant to plead such matter in abatement, in order that the plaintiff might by his replication show how the postponement had taken place.— Judgment was rendered uj>on the verdict and the defendant appealed.

No Counsel appeared for either party.

Daniei, Judge.

The Judge below was of opinion that the continuance of the trial of the warrant from the 2d day of June 1832, to the 4th day of July following, was what the justice had a right to do,, by virtue of the act of 180S, (Rev. ch. 627, sec. 3.)

We agree with the judge in the above opinion — although the words “Sundays excepted,” are not incorporated in the third section of the act of 1803, yet from what is in the preamble to that section, w-e must understand the enacting part to mean, that a Justice of the peace shall have power to enter a continuance or postponement of trial, of any civil matter before him, to any period of time within thirty judicial days from the date of the entry, that is, “Sundays excepted,” for dies dominms non est jnridicus. The preamble to the aforesaid section informs us that “doubt bad arisen "whether any investigation or decision can be legally had on a warrant in any case after thirty days from the date thereof, although the same may have been executed and returned in due time, and for sufficient cause shown, postponed by the justice for remedy whereof, “ Be.it enacted, &c. that on oath being made by either of the parties, the justice may continue or postpone the trial of the cause,provided such postponement shall not exceed thirty days. The Legislature must have meant, as it seems to us, that the conti-tinunnee of the cause should be confined within the same time that the act of 1794 authorised and directed the justice to cause 1ns warrant to be returned in the first instance, viz : thirty days, “Sundays excepted.” If the Sundays are taken out in computing the days between the two periods of time, then the trial day would be within the time limited by the act.

A miscontinu-tíraTo/th^peac^ ca,mot be taken tho defendant, af i terhehasappeai-the cause in the court above-

Secondly : — If there bad been a miscontinuance the defendants instead of bringing a writ of false judgment, appeared at the trial and appealed from the judgment to the county court, and even tiien no motion Vas made to quash the proceedings, for irregularity, nor was any plea entered. I he plaintiff again obtained a judgment in the county court, and the defendant appealed to the Superior court, where they entered the plea of nil debet in bar of the plaintiffs demand. The Judge was of the opinion that if the magistrate had acted illegally in the continuance over that the defendants had waived the objection by pleading in bar of the demand. This court is by no means prepared to decide that after an appeal the defendant could, by any plea, be admitted to deny that there was a judgment from which he did appeal, but if ho could, then the court concurs also with the opinion of the Judge on this point, for it is a rule in pleading that good matter must be pleaded in right form, apt time and in due order. If the defendant pleads in bar to the action he admits the form of the writ and count — he answers to the right in demand, and puts that right in issue, and thereby admits that there is a sufficient/oran to put it in issue. (5 Bac, M, 327, 328). If there was any error in the proceedings before the Justice, the subsequent consent of the defendants to go on with the case, took away the error.

Feb Curiam. — Judgment aeeiumed.