Hunt v. Wickwire & Foot

10 Wend. 102

• Court: New York Supreme Court
• Decided: January 15, 1833
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

It is in general true that un- • less a cause is tried at the time appointed, or within one hour, such omission amounts to a discontinuance, and the cause is out of court; but this is not universally so. If the justice is engaged at the hour in trying another cause which occupies him till after the time, that is a good reason for the delay, and no rights are lost to either party. The justice may proceed, if he does so, as soon as possible after his other official engagements are disposed of. I can see no good reason why any official duty of the justice is not a good excuse for the postponement of the trial. In this case the judge was right, however, in putting the case to the jury, upon the proof of the agreement that the cause might be tried after the adjournment 6¿ the town meeting. That the time was not misapprehended, and supposed to be the next day, is proved by the fact that the defendant appeared in the afternoon of the first day of the town meeting. Besides, it is very unusual that a town meeting continues more than one day. The verdict is fully sustained by the evidence, and there is no ground for granting a new trial. Whether the discontinuance in such cases is absolute so as to make the justice a trespasser, or whether it only subjects his judgment to reversal for irregularity, are questions which need not now be discussed. In Horton v. Jluchmoody, 7 Wendell, 200, it was held that when a justice acts without acquiring jurisdiction, he is a trespasser ; but having jurisdiction, an error in judgment does not subject him to an action. He acts judicially, and is entitled in such cases to protection.

New trial denied.