Anderson & Son v. Hjerrild

155 N.W. 780, 36 S.D. 521, 1915 S.D. LEXIS 187

• Court: South Dakota Supreme Court
• Decided: December 31, 1915
• Docket: File No. 3773
• Status: Published

Opinion

McCOY, P. J.

This is an appeal by defendant from a judgment of the circuit court affirming a judgment of a justice of the •peace in favor of plaintiff. The summons was issued on January 26, 1914, by A. E. Andreasen, justice of the peace, and made returnable on January 30th at 9 o’clock a. m. The “town marshall” certified that on the 27th day of January he served the said summons upon defendant personally. On January 30th the defendant appeared and made a motion for change of venue to the next nearest justice, basing such motion on an affidavit of defendant stating that she believed she could not have a fair and impartial trial before said A. E. Andreasen, justice of the peace, by reason of the interest, prejudice, and bias of said justice, which motion for change of venue was granted, and the cause thereafter on the 7th day of March, 1914, certified to Justice of. the Peace Chris Paulsen for -trial. The docket entries of' Justice Paulsen, omitting the reference therein to the docket 'entries of Justice Andrea-sen, contain, among other things, the following:

“The above action was received by .me on the above-named date, and I have on the 9th day of March issued notice of trial to all parties concerned setting time of trial on March 13, 19x4, at 2 p. m. On or before March 13th notice was sent to me that the defendant’s attorney could not be present on said’ date. Time was extended and notice given to all parties concerned, setting April 15th at 2 o’clock p. m.- for trial of foregoing action.

“April 15, 1914, 2 10’clock. The plaintiff appearing in person and by attorney, * * * and after waiting for the period of one hour, and the defendant not appearing, it is decreed and adjudged that the plaintiff be awarded judgment for the full amount of the claim. * * *”

Thereafter an appeal was taken to the circuit court by said defendant upon ¡questions of law alone based upon a settled statement of oase, and which judgment of the justice court was affirmed on such- appeal.

[i] Oln this appeal it is first urged by appellant that the justice of the peace Andreasen never -acquired jurisdiction of said action, in that said court never acquired jurisd'ction over the person of the defendant; drat the “town marshal” of some undisclosed town- made the certificate of service. We are of the view, however, that the defendant submitted to the said court jurisdiction over her person by voluntarily appearing and moving for and securing a change of venue to another justice. Freeman v. Burks, 16 Neb. 328, 20 N. W. 207; Post v. Brownell, 36 Iowa, 497; Wm. Deering & Co. v. Venne, 7 N. D. 576, 75 N. W. 926; Mayes v. Goldsmith, 58 Ind. 94.

[2] It is also contended by appellant that the learned circuit court erred in holding that Justice Paulsen did not lose jurisdiction by his adjournment from March 13th to April 15th. The specific contention of appellant is that it does not appear from the docket entry how notice was sent to the justice, whether by defendant or plaintiff; that this was not an adjournment upon the application of either party to the action; it was an adjournment by the court itself. The statute (section 93, Justices’ Code) provides that every justice must keep a docket, in which he must enter certain specified-things, among which are 'every adjournment, stating on whose application, and to what time.” Courts, in reviewing the proceedings of a justice of -the peace, exercise much liberality. The general -rule, stated in 24 Cyc. 744, is as follows:

“It is the uniform -practice of the courts in reviewing proceedings had before justices of the peace to regard them with marked indulgence and liberality in the furtherance of the ends of justice, .and, if possible, sustain them, by every reasonable and warrantable intendment. Thus, in the absence of a showing to the contrary, the conduct of the hearing'.'before the justice will be presumed to have been regular; and it will be .presumed thaf the rulings and the decision of the justice were correct. But where a justice is required to- -enter on his docket the fact that certain things were -done in the progress of a case pending before him, it will be presumed, in the absence of such entry, that they were not done.”

We are of the opinion that there is sufficient in this docket entry in question to. show that this adjournment was upon the application of defendant, for the reason that his attorney could not be present on March 13th; and it will be presumed that the notice and information to the justice as to. the inability of defendant’s attorney to be present was by some proper and legal means presented to -such justice. The manner or means by which .application for a continuance may be made is not required to be en-•tererd in the docket. It 'seems to be a well-established rule that, where it appears that a justice’s court has jurisdiction over the subject-matter and' over the person of the defendant, it will be presumed, in the absence of any .affirmative showing to the contrary, that the acts and judgment of such justice are regular and legal, and that all steps were properly and legally taken to preserve and retain jurisdiction to enter judgment; that, under such circumstances, every reasonable intendment will be made to sustain the jurisdiction of the justice. Baizer v. Lasch, 28 Wis. 268; Hatch v. Christmas, 68 Mich. 84, 35 N. W. 833; Stoll v. Padley, 98 Mich. 13, 56 N. W. 1042; Church v. Pearne, 75 Conn. 350, 53 Atl. 955; Fox v. Hoyt, 12 Conn. 491, 31 Am. Dec. 760; Black on Judgments, § 287; 24 Cyc. 744.

[3] Appellant also .contends that the circuit court erred in holding that Justice Paulsen did not lose jurisdiction by his failure to serve upon defendant a notice when and where said trial would take place at least one day before -the time fixed for trial. There is nothing appearing in the settled record, on the appeal from justice to- circuit court, showing that such notice was not timely and regularly given. The statute does not require that' the fact of such notice or manner of service 'thereof be entered -in the docket. The presumption, therefore, is that such notice was regularly given.-

The judgment appealed from is affirmed.