
    LOSS OF JURISDICTION BY A JUSTICE OF THE PEACE.
    Court of Common Pleas of Montgomery County.
    J. H. Sampliner v. Sarah Bialosky et al.
    
    Decided, 1924.
    
      Continuance — Granted by a Justice of the Peace for more than Ninety Days — Judgment Subsequently Rendered — Declared Void in Proceeding for Revivor.
    
    Continuance of a cause by a justice of the peace for more than ninety days is in legal effect a discontinuance of the action, and a judgment subsequently rendered by the justice in a cause so continued is without effect and void.
    
      E. H. (6 W. B. Turner and Sam-uel Blau,, for Sampliner.
    
      Then. C. Lindsey, Jr., for Bialosky.
    
      
       Affirmed by tbe Court of Appeals,
    
   Snediker, J.

It appears from the filings in this ease on which an order of revivor of judgment is sought, that the plaintiff on the 8th day of. April, 1910, by the consideration of C. D. Thompson, a justice in and for Dayton township, recovered against Sarah Bialosky and Isaac Bialosky, judgment for $244 and costs, and that on that same day he filed a transcript of his judgment in this court; that the judgment by reason of the failure to issue executions thereon at the statutory period had become dormant.

A conditional order of revivor was served on the defendants, Isaac Bialosky and Sarah Bialosky; subsequent to the service of such, conditional order of revivor, Isaac Bialosky objected to the judgment by revivor against him and filed with the clerk of the court an affidavit in which he avers:

“That in the action before the justice of the peace he appeared on the 7th day of December, 1909, for trial and insisted upon trial, but that neither plaintiff nor his counsel appeared; that he waited for the one hour to pass and was informed by the clerk at the justice’s court that the counsel for plaintiff refused to appear for the reason that they had not been paid their fees; that as a defendant in the ease he insisted that the case was dropped and abandoned, and that he never in any respect consented to any continuance for any period of time whatsoever. He avers that the docket of the justice of the peace shows that on December 7th, 1909, ‘case continued to April 7th, 1910’. That this continuance and entry were ordered and put upon the docket without his knowledge and consent; nor was it agreed to by either of the defendants nor by defendants’ counsel.”

" Iiis claim is, thát because of what occurred there was a discontinuance of the case; the judgment was illegal, void and of no effect; having been rendered on April 7th, 1910, the date to which the case had been continued, contrary to the law of Ohio. ...

Section 10313 of the General Code provides:

“An adjournment may be had either at the return day, or any time to which the cause stands adjourned, on the application of either party, for a period longer than thirty days, but not to exceed ninety -days from the time the summons is returned, upon compliance with the next preceding section, and on proof, by the oath of the party or otherwise satisfactory to the justice, that such party can not be ready for trial before' the time to which he desires an adjournment for want of material evidence, describing it; that the delay has not been made necessary by any act or negligence on his part since the action was begun, and that he expects to procure the evidence at the time stated by him.”

The next preceding section is 10312, and reads as follows:

' “The trial may be adjourned upon the application of either party, without the consent of the other, for a period not exceeding thirty-days, as follows: The party asking the adjournment, if required, by his. adversary, must prove by his own oath, or otherwise, that for want of material testimony, which he. expects to procure, he can not safely proceed to trial.”

‘ -Both of these sections are part of the justice’s code of the state of Ohio. We do not understand that it.is contended by the-plaintiff that the proof by oath required by Section T0313,' vas furnished to the magistrate.

„ -It .will be observed, that the first trial date being the 7th day of- December, 1909, and the continuance allowed by the magistrate being April 7th, 1910, that four months elapsed during Mneit' the case stood continued' on the docket of the ■ justice of the peace. — ■. -

What was the effect of the action of the court in so adjourning the ease to a time in excess of that allowed by the law?

In the ease of Dunlap v. Robinson, Admr., 12 O. S., p. 530, the Supreme Court say (following the New York decisions) :

“A justice of the peace can not, by neglecting or refusing to enter judgment within the time required by statute, keep an action indefinitely pending before himself. When his power to determine the controversy, by a valid judgment, ceases, his jurisdiction ends. His power of adjudication is derived from the statute, and if not exercised within the time allowed by law, it is clearly lost; and the cause is no longer pending before him. The legal effect of such a failure in duty, is a discontinuance of the action. So jurisdiction may be lost by an adjournment of the suit, without consent of parties, for a time longer that the statute permits. Such unauthorized adjournment, or other neglect of duty by the justice, which prevents a hearing and determination of the suit within the proper time, it has been repeatedly held, works a discontinuance of the action.”

If jurisdiction is lost, what is the effect thereof?

“Jurisdiction signifies the power or duty of ‘declaring right’, that is, of declaring in the official character of a judge, what is the law applicable to a given state of facts, or what are the respective rights of the parties, as determined by the application of law to the facts before the tribunal. Technically, it may be defined as the power and authority constitutionally conferred upon a court or judge to pronounce the sentence of the law, or to award the remedies provided by law, upon a state of facts, proved or admitted, referred to the tribunal for decision, and authorized by law to be the subject of investigation or action by that tribunal, and in favor of or against persons who present themselves, or who are brought before the court in some other manner sanctioned by law as proper and sufficient. In order to the validity of a judgment, the court must have jurisdiction of the persons, of the subject-matter, and of the particular questions which it assumes to decide.” Black on Judgments, Section No. 215.

If, then, jurisdiction be lost (as the Supreme Court of Ohio declares) by an adjournment of a suit without the consent of parties for a time longer than the statute permits, the judgment is rendered without jurisdiction, and void,

As further stated by Black at Section No. 218:

“It is a familiar and universal rule that a judgment rendered by a court having no jurisdiction, of either the parties or the subject-matter, is void and a mere nullity, and will be so held and treated whenever and wherever and for whatever purpose it is sought to be used or relied on as a valid judgment. The effect of want of jurisdiction is clearly stated in an early decision of the United States Supreme Court in the following language: ‘Where a court had jurisdiction, and it has a right to decide every question which occurs in the cause, and whether its decision be correct or otherwise, its judgment, until reversed, is' regarded as binding in every other court. But if it act without authority, its judgments and' orders are regarded as nullities. They are not avoidable but simply void, and form no bar to a recovery sought even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentence are considered in law as trespassers.’ ”

Blaekstone, in his third volume of Commentaries, says:

“A discontinuance is somewhat similar to a non-suit. For when a plaintiff leaves a chasm in the proceedings of his case by not continuing the process regularly from day to day and tíme to time, bound as he ought to do, the suit is discontinued and. the defendant is no longer to contend, but the plaintiff must begin again by suing out a new original usually paying costs, to his antagonist.”

In the 52 Miss., page 457-458, the third syllabus reads:

■ ‘‘‘Discontinuance at common law was a failure to continue an action regularly from day to day or term to term between the commencement of the suit and final judgment, and if there was any lapse or want' of continuance, the parties were out of court and the plaintiff had to begin anew.”

In- the 4th Johnson Reports, page 117, is a case where the defendant was summoned to appear before the. justice on certain day, at a certain place, and the parties appeared, but the justice did not and sent a written note adjourning the case to a further date on which he attended with the plaintiff, and the defendant not appearing was heard on the part of the plaintiff and judgment was given.in his favor. It was held that the adjournment was irregular, and the defendant not bound to attend further, and that the subsequent proceedings by the justice were null and void.

In the case of Curtis et al v. Gauver, Admr., 46 Ala., at page 459, the court in the opinion say:

“A discontinuance puts an end to a case; the parties are thereby out of court, and the plaintiff must begin de novo.” 1 Dunlaps Pr., 486; 3 Black Com., 296..

“At the close of a term such an error may be corrected, but after the end of a term and the final adjournment of the court, the court ceases to have any power over its records except to correct clerical errors where the record affords matter upon which to base such correction.”

In the ease of Drinkard v. State, 20th Ala., at page 13, the court say:

“All the authorities agree that every suit whether civil or criminal may be discontinued and the discontinuance may be defined as being a gap or chasm in the proceeding occurring after the suit is pending.”

We do not wish to be understood as holding that a discontinuance deprives the plaintiff of his right to recover in a subsequent action, if brought within the period limited by law.'

It is contended by plaintiff that the defendants’ remedy was by prosecution of error. Had he seen fit, he undoubtedly might have prosecuted error under those circumstances, but if the judgment was without jurisdiction. and void, it is not essential that he should do so in order to object to a revivor of the judgment or to its execution.

Tn the case of Tunge, Appellant, v. Lloyd et al, 92 Neb., p. 488, circumstances like those in the case at bar occurred and error was prosecuted. The parties all being in court all the time that the errors complained of were committed. In deciding the case, Chief Justice Reese says:

“Sections 960 and 961 of the code provide that a case may be adjourned for 30 days upon the application of either party, either on the return day or any subsequent day to which tfhe cause may stand adjourned, ‘but not to exceed ninety days from the time of the return of the summons, upon compliance with the provisions’ of the statute. If the adjournment, without plaintiff’s consent and over his objection, for more than ninety days worked a dismissal of the ease, and the justice thereby lost jurisdiction to proceed further without' the consent of the parties, the order was final and the proceeding in error would lie. We are not aware that this identical question has ever been before us. In Fischer v. Cooley, 36 Neb., 626, the final adjournment beyond the 90 days, was had by the agreement of the parties to the suit, and, for that reason, it was held that jurisdiction was not lost; but we said: “Under said section (961), when a justice of the peace adjourns a suit pending before him, without the consent of parties, for more than ninety days from the return day, it operates as a discontinuance.”

In Maxwell’s Practice in Justices’ Courts (5th) 129, it is said:: “Without consent of the parties, the court has no authority to adjourn a cause more than ninety days from the return day of the summons. An adjournment exceeding that time, without consent of the parties, operates as a discontinuance of the action” — citing Dunlap v. Robinson, 12 Ohio St., 530. While the exact question here presented was not involved in that case, the logic of the opinion sustains the text in Maxwell’s Justice Practice. In the body of that opinion it is said: “His (the justice) power of adjudication is derived from the statute, and, if not exercised within the time allowed by law, it is clearly lost; and the cause is not longer pending before him. The legal effect of such a failure in duty is a discontinuance of the action. So, jurisdiction may be lost by an adjournment to the suit, without consent of parties, for a longer time than the statute permits. Such unauthorized adjournment, or other neglect of duty by the justice, which prevents a hearing and determination of the suit within the proper time, it has been repeatedly held, works a discontinuance of the action.”

Let us conclude by observing that, if as held by the Supreme Court of Ohio, an adjournment to a date beyond the time allowed by the statute deprives the justice of his power of adjudication, and the case is no longer pending before him, and the legal effect of such adjournment is a discontinuance of the action so that he has lost jurisdiction of the suit, then we are unable to see how he can render a valid judgment which it becomes the duty of this court to revive.

In our opinion the application for an order of revivor ought to be denied.  