Crain v. Bode
| Decision Date | 20 March 1895 |
| Citation | 5 Wyo. 255,39 P. 747 |
| Parties | CRAIN v. BODE |
| Court | Wyoming Supreme Court |
Commenced in Justice Court July 13, 1893.
ERROR to the District Court for Laramie County. HON. RICHARD H SCOTT, Judge.
The instrument sued on was as follows:
The action was commenced in justice court July 13, 1893, as upon a debt not due. The affidavit for attachment stated as grounds therefor that defendant had sold, conveyed and disposed of her property with the fraudulent intent to cheat and defraud her creditors, and to hinder and delay them in the collection of their debts; that she was about to do so; was about to remove part of her property with the intent and effect of cheating and defrauding her creditors; and that she was about to become a non-resident of the State of Wyoming. There was no order of the justice allowing the attachment. A motion was made to dissolve the attachment, and upon a hearing was denied. Judgment was rendered for the plaintiff August 7, 1893. On error in the district court, such judgment was reversed. From the judgment of the district court error was prosecuted to the Supreme Court.
Judgment affirmed.
W. R. Stoll, for plaintiff in error.
The justice court had jurisdiction of the subject matter, and of the person, and the judgment, if prematurely rendered was but an irregularity, which was waived by the tender. A maker of a note may waive his right to insist upon the application of the rule as to days of grace. The statutory provisions respecting actions upon debts before maturity are applicable to justice courts. (R. S., sec. 3420.)
Ralph E. Esteb, and Frank H. Clark, for defendant in error.
The instrument sued on was entitled to days of grace. (L., 1888, ch. 70, secs. 38, 62, 63, 37; I Dan'l Neg. Instr., sec. 613.) No action could be brought thereon until the day following the expiration of the days of grace. 1 Wait's Act. & Def., 641, and citations.) The term month used in a negotiable instrument means a calendar month. The judgment, being prematurely entered, was void. (Sutherland Stat. Const., sec. 471, et seq.) The justice had no jurisdiction for the reason that the provisions relative to suits upon claims before maturity do not apply to such courts. (R. S., sec. 3541, 3573, 3416.)
An action was brought before H. Glafcke, a justice of the peace, by the plaintiff in error upon a promissory note for the sum of $ 28.16, dated May 5, 1893, and payable three months after date. The suit was brought in attachment under the provisions of the code of civil procedure permitting an action to be brought on a claim before it is due, upon an affidavit for attachment alleging one or more of the statutory grounds, and upon the allowance of the attachment by the court or judge specifying the amount for which the attachment is allowed, not exceeding a sum sufficient to satisfy the plaintiff's claim and the probable costs of the action. Rev. Stat., secs. 2912-2918. The cause was taken by change of venue to W. P. Carroll, another justice of the peace for the same precinct, and the attachment was sustained upon a hearing on the traverse of the grounds of the affidavit for attachment. Judgment was finally rendered for the plaintiff in error August 7, 1893, one day before the note became due, allowing the statutory period of grace. The cause was taken to the district court for Laramie county by proceedings in error, where the judgment of the justice of the peace was reversed and set aside and the attachment was dissolved, and the plaintiff in error seeks to reverse this judgment of the district court.
The proceedings are not authorized by the justices' code as no provision appears therein for commencing an action before a debt is due, either by attachment or otherwise, but it is contended that the provisions of the code of civil procedure are applicable in such case in courts of justices of the peace by force of the statute.
A section of the justices' code found in section 3420 of the Revised Statutes reads as follows: "Every justice of the peace in this territory (State) after qualifying, is hereby authorized to hold his court for the trial of all actions of which jurisdiction is given him by law, and to hear, try and determine the same according to law; and for that purpose, when no special provision is otherwise made by law, such court shall be vested with all necessary powers which are possessed by courts of record in this territory (State); and all laws of a general nature are to apply to such justice's court so far as the same may be applicable, and not inconsistent with the provisions of this chapter."
It was held in Kansas, where the statute declares that the provisions of the code of civil procedure which are in their nature applicable to the jurisdiction and proceedings before justices of the peace and in respect to which no special provision is made by statute, are applicable to proceedings before justices of the peace, that a provision of the code of procedure for civil cases permitting an action to be brought by attachment before the maturity of the debt did not apply to justices of the peace, on the ground that the legislature had covered the whole ground of attachment and garnishment before justices by special provisions of the justices' code wherein no such proceeding was allowed as an attachment before the maturity of the debt. Lyons v. Insley, 32 Kan. 174, 4 P. 150. In Ohio, under a similar provision, it was held that there being no special provision for a discharge of an attachment by proceedings upon a traverse of the original affidavit in attachment before justices, that the provisions of the civil code permitting a hearing upon the affidavit for attachment and the affidavit traversing the grounds of attachment, applied to proceedings before the justice. Bancroft v. Talbott, 29 Ohio St. 538. So it was held in Nebraska, that the provisions of the civil code of procedure for the revival of judgments and actions, applied to actions before and judgments rendered by justices of the peace, where the justice's act was silent in that respect, and the court says: ...
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