Midler v. Lazadder

14 N.J.L. 34

• Court: Supreme Court of New Jersey
• Decided: May 15, 1833
• Status: Published

Opinion

Hornblower, C. J.

On the return day of the summons, the parties appeared, and on the prayer of the plaintiff below, the cause was adjourned till the sixth of June then next, at 2 o’clock, P. M. On that day, but at what hour of the day does not appear by the transcript of the justice, the cause was further adjourned at the instance of the plaintiff below, to the next day, that is to the seventh of June, at ten o’clock, A. M. And on this latter day the plaintiff appeared, and the justice proceeded to try the cause in the absence of the defendant, and rendered judgment against him for eighty-one dollars debt, four dollars thirty-one cents costs.

By the 17 th section of the act, constituting courts for the trial of small causes, Rev. Laws 683, the justice is authorized, upon the application of either party, to grant a second adjournment; but then the party applying therefor, must make affidavit of the want of a material witness, (whom he shall name) and that he thinks he can produce him at a future day, and then the justice may adjourn the trial for a period not less than five, nor more than thirty days. The affidavit sent up by the justice, is as foTlows—“ David Lazadder being duly sworn, on his oath, says,.' that he does believe, that if delay in the adjournment of the above suit be had, that he will be in danger of losing his demands ; and therefore prays that the above suit be adjourned to some time not exceeding three days, and further saith not.” This is not such an affidavit as the law requires ; and if it was, the justice committed an error in adjourning only to the next' day. If he adjourned at all, it ought to have been for five days, at least.

Judgment reversed.