Kinniken v. Kinney

4 Del. 313

• Court: Superior Court of Delaware
• Decided: July 5, 1845
• Status: Published

Opinion

The Court

affirmed the judgment. It does not appear by the record, that the 'suit was against the defendants as partners, and it will not be so inferred. They are to" be regarded as joint debtors. As to the second adjournment; the act (Dig. 332,) authorizes the justice to adjourn the proceedings from day to day for his own information, or the purposes of justice. It requires him to make one adjournment on the application of either party, if the sum demanded exceed $5 33; “but no subsequent adjournment shall be granted, unless it shall appear to the satisfaction of the justice, by the oath or affirmation of the party applying for the adjournment or otherwise, that such party is not prepared to go into the trial with safety, and that such want of preparation is not owing to design or to not using due diligence.” This restriction has been construed to apply only to adjournments granted on the application of a party, and not to adjournments made by the justice on his own motion for the purposes of justice, otherwise it would be often impossible to decide cases witli the necessary deliberation. And by section 5 of the act regulating this jurisdiction, it is also provided, that on the non-appearance of a defendant pursuant to an adjournment, the justice may either give judgment by default, or may adjourn the cause to si further day, which gives him the power of his own motion to make a second adjournment without affidavit. Additionally, this second adjournment was made for the advantage and benefit of the party who now excepts to it.

Judgment affirmed.