Lester v. Crary

1 Denio 81

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: May 15, 1845
• Status: Published

Opinion

By the Court, Bronson, Ch. J.

As neither of the parties appeared in pursuance of the summons, the question is, whether a suit was well commenced without process. Conceding that Weaver was the attorney of Lester, still the agreement which was made at Weaver’s shop on the 13th of December is not a matter of any legal importance. The justice'has no right to act upon information relating to the parties or the suit which he has picked up when out of court. (Tenny v. Filer, 8 Wendell, 569; Kimball v. Mack, 10 id. 497; Fanning v. Trowbridge, 5 Hill, 428.) It was a mistake, therefore, to enter on his minutes that the parties appeared" on the 13th, and adjourned to the 20th of December. But the parties were before the justice on the last mentioned day, and there was then an adjournment on the request of Crary; but no issue was joined. Did the proceedings on that day amount to a good commencement of a suit ? If they did not, then what was done on the 25th of December, in the absence of Crary, was wholly unauthorized. “ Suits may be instituted before a justice, either by the voluntary appearance and agreement of the parties, or by process.” They “shall .be considered as commenced, where the suit is instituted without process, at the time of the parties joining issue.” (2 R. S. 227, § 11, 12.) This language is too plain to be got over. When there is no process, there is no suit or action pending until .the joining of the issue. Here there never was any issue. I think the case was properly disposed of by the common pleas.

Judgment affirmed