McGinniss v. Dickson

20 Ohio C.C. Dec. 721, 11 Ohio C.C. (n.s.) 99, 1908 Ohio Misc. LEXIS 158

• Court: Crawford Circuit Court
• Decided: January 28, 1908
• Status: Published

Opinion

NORRIS, J.

This action was commenced on February 16, 1905, before a justice -of the peace of this county, by E. and M. J. MeGinniss against one David Yockey. The trial was set for February 25, 1905. David Yockey filed a counterclaim on the day preceding the trial day. Tbe counsel for tbe plaintiffs and the counsel for the defendant met at the office of the justice of the peace on February 24, 1905, and by the agreement of both parties the case was adjourned “indefinitely,” says the record of the justice of the peace. Up to about October 1, 1905, nothing had been done in the case. On this date, on application of counsel for the defendant, the case was by the justice of the peace set for trial on October 16, 1905. The justice of the peace, on October 1, 1905, notified the plaintiffs by letter that he had set the case for trial on October 16, 1905, at 10 o’clock a. mv It is conceded in the record that the plaintiffs received this letter and were therefore informed. On October 16, 1905, and at 10 o’clock a. m. of that day, the time fixed by the justice of the peace for trial, the defendant came, but the plaintiffs failed to appear, either in person, or by counsel, at the time set for the trial, or within one hour thereafter. Whereupon the justice of the peace dismissed the plaintiffs’ bill of particulars, and, on motion of the defendant, proceeded with the case on defendant’s counterclaim, and upon the evidence, and entered judgment for the defendant against the plaintiffs. On October 23, 1905, the plaintiffs’ counsel appeared and ordered a transcript of the findings to be carried up on error, says the record. I make these statements in preface and by way of introduction to the action in error, so that the facts recited hereafter may be more fully understood.

It appears that execution was issued in the aforesaid action from the justice of the peace’s court, on defendant’s default judgment against the plaintiffs, being obtained on defendant’s counterclaim. The constable, Frank Dickson, the defendant in error in this action, levied the execution. Thereupon, the plaintiffs in error commenced this action in replevin before a justice of the peace against Frank Dickson as constable, to recover possession of the property thus taken by Dickson. The case reached the common pleas court on appeal. The petition in the common pleas court does not seem to be an action against Dickson as constable, but against him personally. The petition claims that Frank Dickson wrongfully attached, etc., the property described in the petition to which the plaintiffs have the right of immediate possession, etc. The answer avers that Frank Dickson is constable, etc., and denies. The-reply admits that Frank Dickson claims the property as constable and avers that the execution upon which the property was taken is null and void — that the judgment of David Yockey against E. and M. J. Mc-Ginniss upon which execution issued is void. These issues in the action in replevin came on for trial in the common pleas court of this county on its merits and, at the close of plaintiffs’ evidence, on motion of defendant’s counsel, the court directed the jury to return its verdict for tbe defendant, and that at tbe commencement of this action tbe defendant bad tbe right of possession of tbe property described in tbe petition. Tbe plaintiffs’ motion for a new trial was overruled and judgment was .entered on the verdict for tbe defendant.

Tbe errors assigned in tbe petition in error for tbe reversal of the judgment and findings of tbe common pleas court, are:

(1) Error in directing tbe verdict for tbe defendant; (2) that the verdict is against tbe weight of tbe evidence, and contrary to law; (3) error in admitting evidence offered by defendant; (4) in rejecting evidence offered by plaintiffs; (5) in tbe charge; (6) that tbe verdict is for defendant when it should have been for plaintiffs; (7) in overruling the motion for new trial; (8) in entering judgment for defendant; (9) other errors apparent on an inspection of tbe record.

It is conceded that execution issued on a “purported judgment” in favor of David Yockey and against E. and M. J. McGinniss in the justice’s court. It is not disputed that defendant took possession of tbe property in. dispute under this execution. It is not disputed that tbe property levied on as tbe property of tbe plaintiffs, and the right of possession of defendant rests on tbe validity of the judgment and tbe execution under it. If tbe judgment is an invalid judgment, tbe execution and tbe possession of Dickson under it is improper and his detention of tbe property is wrongful detention. And this is tbe case, and tbe only question in it, as we view tbe case.

It is not contended but what tbe action of E. and M. J. McGinniss against David Yockey was properly commenced, and that tbe justice of tbe peace bad jurisdiction, in tbe beginning, of tbe person of tbe parties and of tbe subject-matter of tbe suit. It is however contended that tbe adjournment of tbe trial of the case “indefinitely” worked a discontinuance of tbe action and that the justice of the peace thereby lost jurisdiction.

While a justice of tbe peace would not have tbe right to adjourn a case on bis own motion for a longer period than that named in tbe statute, Secs. 6534 to 6536 Rev. Stat., and would not have tbe right to adjourn tbe trial at tbe request of one of the parties for a longer period than that fixed by statute, and to do so in either instance would deprive him of jurisdiction, and while a continuance for an “indefinite time” and not to a day certain on bis own motion, or at tbe request of one of tbe parties only, would mark a determination of tbe suit, we think that we are warranted in saying that at tbe request of both parties, an adjournment of tbe trial, or a continuance for an “indefinite period” does not work a discontinuance of tbe case, but vests tbe court with such authority that at a later period than that of the day of the original assignment, the court may fix a day certain for the trial. He still has the power to call the case up for the purpose of fixing a definite day for trial. We do not see anything unreasonable in this conclusion. The adjournment is the act of the justice of the peace at the request of both parties. The agreement of the parties that .a day certain should not be then fixed did not take from the justice of the peace the power to fix a day at a later period, but was an affirmance of the authority which the justice of the peace then had, to fix a day, and an agreement that he might at some future day name a date certain for the trial of the case.

This being our view, we find no error and so affirm the judgment at the cost of plaintiffs in error. Execution is awarded and the case is remanded for execution.

Hurin and Donnelly, JJ., concur.