Austin v. Smith

23 Vt. 704

• Court: Supreme Court of Vermont
• Decided: January 15, 1851
• Status: Published

Opinion

The opinion of the court was delivered by

Royce, Ch. J.

The defendant had a right to treat the suit before the magistrate as being discontinued, from the time of the adjournment ordered by Justice Catlin, for both reasons assigned in the motion; — 1. Because, the suit having been already continued by Justice Hale, it was too late for another magistrate to direct a farther adjournment; and 2. Because Justice Catlin, being related to one of the parties within the fourth degree of consanguinity, was disqualified to act in the matter.

But the exceptions and the record of the justice show, that the defendant interposed no objection to the right of Justice Hale to proceed in the case on the twenty third of December, and that the judgment was then rendered against him without objection on his part, and with his express consent. And it was held in Howe v. Hosford, 8 Vt. 220, that such an adjournment of a justice suit would operate a discontinuance of the action, at the election of the defendant, that it was an irregularity which he might waive, and, that, if he' afterwards appeared, and, without objection on that ground, went to trial on the merits, it shouldi be deemed a full and complete waiver. We do not perceive, how the defendant’s concurrence and assent to the judgment in this instance can be regarded otherwise, than as a waiver of all objection on the score of previous irregularity, or want of jurisdiction in the magistrate, when the judgment was rendered. The case of Howe v. Hosford must therefore be considered as decisive of the present case, against the defendant.

Judgment of county court reversed, and cause remanded to that court.