Holgate v. Broome

• Decision Date: 01 January 1863
• Parties: ROBERT HOLGATE vs. MATTHEW BROOME.
• Court: Minnesota Supreme Court

8 Minn. 209

ROBERT HOLGATE vs. MATTHEW BROOME.

Supreme Court of Minnesota.

Points and authorities for appellants: —

1. The statute is imperative that the pleadings must take place at the time mentioned in the summons for the appearance of the parties, or at a time not exceeding one week thereafter.

2. There is no counter claim pleaded in the answer. The defendant must either allege that the lumber sold was of the value and the amount of the indebtedness claimed in his answer, or that the plaintiff expressly promised to pay him that amount therefor. Without one or the other of these allegations, the averment of indebtedness is a mere conclusion of law, unsupported by any facts. Foerster et al. v. Kirkpatrick et al. 2 Minn. [210]; 15 Barb. 33, and cases cited.

Points and authorities for respondent: —

1. If the plaintiff neglected to appear before the justice, within the time prescribed by law, and make the objections of which he now complains, he has no relief, and ought to have none, against his own negligent acts. It is too late, after the final disposition of the action by the justice, to raise the questions stated in his affidavit for the writ. 19 Wend. 361; see Hollinshead v. Von Glahn, 4 Minn. [190]; 2 Minn. [259] and [313].

2. The case does not show that any error materially affecting the merits of the controversy has intervened, nor does it appear that the plaintiff has any merit in the application. He had the right of appeal in the action, and has wholly failed to take the preliminary steps before the justice entitling him to the benefits of certiorari.

3. The counter claim set up in the answer was a good defense to the action, and if not technically set forth according to the requirements of the code, it is too late to make objections after the rendition of the judgment, or to complain of his own negligence in the premises. Comp. Stat. 502, § 34.

4. The continuance of the action by the justice, before the pleadings were filed, (with the consent of the parties) did not prejudice any rights of the plaintiff, and the justice had a right to fix a time other than the day named in the summons for the pleadings to be filed. Comp. Stat. 501, § 24.

Lamprey & Storey, for appellant.

S. M. Flint, for respondent.

ATWATER, J.

The appellant commenced an action in a justice's court against respondent, and filed his complaint Sept. 18, 1862, the return day of the summons. The answer was filed, as appears by an indorsement thereon, Sept. 26, 1862, to which time the cause had been adjourned by consent of parties. The cause was called on that day at the adjourned hour, and plaintiff did not appear. Defendant appeared by attorney, and filed his answer. The plaintiff did not appear within the hour, and defendant left, offering no evidence. The justice rendered judgment for defendant for one dollar damages, and costs taxed at $4.05. The plaintiff took the case to the district court by certiorari, where the judgment was affirmed. The plaintiff then appealed to this court.

The first objection here raised is, that it was error in the justice to permit the defendant to file his answer after the expiration of one week from the time named in the summons for the appearance of the parties. I think this objection well taken. Sec. 24, p. 501, Comp. Stat., provides, that "the pleadings in justices' courts must take place at the time mentioned in the summons for the appearance of the parties, or at such time thereafter, not exceeding one week, as the justice may appoint, for the convenience of the parties, and by their consent." This statute is imperative that the pleadings must take place at the time mentioned in the summons for the appearance of the parties. The justice has no power to receive them at any other time, save by consent of parties; when this is given, he may receive them at any time thereafter, not exceeding one week. A justice of the peace is an officer of special and limited jurisdiction, and derives all his power and authority from the statute, and must confine himself in the trial of causes within the limits prescribed by statute. Snell v. Loucks, 11 Johns. 69; Pickert v....