
    The People of the State of New York, Appellant, v. Eugene Sullivan, Respondent.
    After a jury was impanneled in a criminal action and the trial begun, the court adjourned until the next day at 10 A. m. In consequence of an extraordinarily severe snow storm, which blockaded the streets and rendered attendance impossible, no court was held on the adjourned day. On the next day the court convened, the defendant and his counsel appeared and the trial "proceeded without objection, and resulted in a conviction. When the district attorney moved for sentence defendant’s counsel moved that the verdict be set aside and a new trial granted; also in arrest of judgment upon the ground that there was no legal court on the day the verdict was rendered. Held, that the motions were properly overruled; that the term of the court having been regularly opened, the adjournment was simply a suspension of proceedings, and the nonattendance on the adjourned day did not deprive the court of jurisdiction to proceed as soon as it was possible for it to attend.
    A court has an inherent power to adjourn its proceedings from day to day as long as it is necessary to finish the business legitimately brought before it unless, by the terms of some statute, its existence is sooner brought to a close.
    The power of a court in regard to adjournments is not limited by the provision of the Code of Civil Procedure (§ 34) providing for adjournments of a term “ by an entry in the minutes.”
    
      It seems the rule is different where the court fails to appear upon the day appointed for the commencement of a term.
    
      People v. Bradwett (2 Cow. 445); People v. Clews (4 Abb. IT. C. 256);
    
      Northrup v. People (37 N. T. 203) distinguished.
    
      People v. Sullivan (49 Hun, 333) reversed.
    (Submitted June 11, 1889;
    decided June 28, 1889.)
    Appeal from order of the G-eneral Term of the Supreme Court in the third judicial department, made July 2, 1888, which reversed a judgment of the Court of Sessions of Montgomery county, entered upon a verdict convicting the defendant upon trial of an indictment under section 635 of the Penal Code.
    The material facts are stated in the opinion.
    
      H. L. Huston for appellant.
    The Court of Sessions had jurisdiction to try and determine the indictment. (Code of Grim. Pro. § 39, subd. 2.) Defendant having moved in arrest of judgment in anticipation of the question why judgment should not be pronounced on him, and sought to show legal cause why it should not, was afforded the opportunity which the statute was designed to secure to him. (Messner v. People, 45 N. Y. 1.) If judgment was prematurely pronounced, defendant having been recalled for the purpose of having the question put and having declined to answer it, and judgment having then been pronounced- to the same effect as before, the error was cured. (Quimbo Appo v. People, 20 N. Y. 531, 534.) The county judge and justices of -sessions constituted a competent court on the fourteenth of March and had jurisdiction and authority to proceed with the business of the term appointed to be held on the twelfth. (People v. Clews, 4 Abb. N. C. 256; Northrup v. People, 37 N. Y.. 203; Hinman v. People, 13 Hun, 266 ; Shaw v. People, 63 N. Y. 36; Blend v. People, 41 id. 604; Freeman on Judgments, § 90; Townsend v. Chew, 31 Md. 247; 1 Bouvier’s Law Diet. 587; Manchester v. Herrington, 10 N. Y. 169;. State v. Martin, 2 Iredell, 122; 1 Bishop on Grim. Pro. § 966.}
    
      Ed. J. Maxwell for respondent.
    Section 35 of the Code,, which provides that if a judge authorized to hold a term does, not come to the place appointed before four o’clock in the-afternoon of the day so appointed, the sheriff or clerk must open the term and forthwith adjourn it to nine o’clock of the-next day, does not apply to Courts of Sessions. (People v. Clews, 4 Abb. N. C. 264.) The cessation of business in a-court at the close of the day until the next is not an “ adjournment ” in the sense used by the Code, but a mere “ recess.” (5 N. Y. 22.) Courts are not, in contemplation of law, in session from the time the term is regularly opened until it is. adjourned sine die for the term. (3 Blackst. chap. 18 ; Freeman on Judgments, § 121; Wright v. Wallbaum, 39 Ill. 554; People v. Bardwell, 2 Cow. 445; Moore v. Heron, 17 Neb. 701; Langhorn v. Wallin, 76 Va. 213.) In order to preserve-its existence or be regular, a term of court must be adjourned from day to day as the meeting of any other body. (1 Blackstone, chap. 2.) The prisoner waived nothing by proceeding-with the trial. (Blande v. People, 41 N. Y. 604; People v. Shaw, 63 id. 36; 36 id. 431; 23 Hun, 297; Hinman v. People, 13 Hun, 266 ; 33 id. 210.)
   Peckham, J.

The defendant was duly indicted by the grand jury of the county of Montgomery for having on the 7th of' October, 1887, willfully discharged a loaded fire-arm at a railway train upon the track of this Hew York Central and Hudson River Bailroad Company, and at a car which was part of' and attached to such train, and thereby endangered the safety of the passengers in said ear. He pleaded not guilty, and the-trial of the indictment came on regularly at a Court of Sessions held for the county of Montgomery, at Fonda, on the 12th of March, 1888. A jury was at that time impanneled, and several witnesses were sworn. At the end of the day the-court adjourned until ten o’clock the next morning, March thirteenth. On the adjourned day no. court was held on account, as the record states, of the snow blockade. It was the day of the great “ blizzard ” of 1888. On the next day the court convened, and the defendant and his counsel were present, and the trial proceeded without objection until its close, when the jury retired, and, on returning into court, rendered a verdict of guilty of the crime as charged in the indictment. The district attorney moved for sentence, and thereupon the defendant’s counsel moved that the verdict be set aside and anew trial granted, and also moved in arrest of judgment upon the ground'that there was no legal Court of Sessions held on the 14th day of March, 1888, that being the day upon which the verdict of the jury was rendered. The ground for such statement rested upon the fact that the court, on the twelfth of March, having been adjourned to meet again on the morning of the thirteenth, and not meeting on that day, that it was thereby dissolved and had no right to meet on the day thereafter, and that all proceedings before such court were cor am nonjudice and void for want of jurisdiction. The motions were overruled, and the defendant sentenced to imprisonment in the state prison. Upon appeal to the General Term that court reversed the judgment, and held that the motion in arrest of judgment was well taken for the reasons therein stated, and that the failure of the defendant to object to the proceedings at the trial could not constitute a court or •confer any jurisdiction upon the judges to continue the trial. From the judgment of reversal the People have appealed to this court.

The question in this case is1 of the most technical nature. ZESTo harm is claimed to have come from the action of the court in proceeding with its business on the fourteenth instead of the thirteenth of March. It is not claimed that the prisoner’s rights were in any way jeopardized, or that he lost the benefit •of any evidence which he would otherwise have had. FTothing but the clear and simple, allegation of a loss of jurisdiction •exists.

The term was legally commenced on the twelfth of March .and the trial proceeded during that day. At its end it became necessary to suspend the proceedings in order that all those participating in the trial might obtain requisite rest. There was no thought of putting an end to the term. An adjournment was had until the next day. An adjournment of such :a nature is simply a suspension of the proceedings then taking place for the purpose of continuing them at a stated time thereafter. At the particular time stated the judges did not .appear because of one of the most extraordinary snow storms ever known in this portion of the country, which rendered it impossible for them to reach the court-house.

At the earliest opportunity thereafter, which was on the very next following day, they did appear, as did the defendant .and his counsel and witnesses, and the trial proceeded without •objection from either side.

FTothing but the most rigorous rule of law should, under ■the circumstances, compel a court to admit its loss of jurisdiction and the consequent failure of all proceedings taken before it. If from the positive commands of any statute, or the decision of some court which is binding upon us, we are compelled to so decide, nothing more need bex said. We do not think there is such a statute or decision. The term of the court having been regularly opened, its continued existence thereafter would, by the common law, be regarded as but one day. All the business done at a term of court was by that law referred to its commencement, unless the law directed certain acts to be done on certain other days. There is an inherent power in a court to adjourn its proceedings from day to day as long as it is necessary, to finish the business legitimately brought before it, unless by the terms of some statute its existence is sooner brought to a close.

The argument for the defendant, brought to its strict logical result, would prevent the further continuance of a court which did not meet until ten o’clock the next day, when it had been adjourned until the preceding hour of nine. It would seem as if there were no time within which a judge might ap]iear subsequent to the hour and minute to which an adjournment had been had, if the argument of the defendant were carried to its extreme length. The failure of the judge to appear upon the day appointed for the commencement of a term of court is a totally different matter. The term is appointed to be held under the authority of a statute, and an adjourned term of the court, at which cases may be noticed and jurors summoned as if to a new and regular term, is of the same nature. In suóh a case, in the absence of any statute, the failure of any judge to appear upon the appointed day may well be regarded as preventing the convening of a legal court; and as no legal court convened and commenced its term on the day appointed by law there would, of course, be no power, in the absence of a statute, in the court to convene/ the next day any more than the next month or the next year; in such case there would be no court to convene; but the term having been opened and commenced its session according to law, we are not prepared to hold, under the circumstances of this case, that jurisdiction was lost by the failure of the court to appear on the thirteenth of March, and that, consequently, all its acts on the fourteenth and subsequent days were absolutely Aroid. The court was once legally in existence, and there was no adjournment sine die, and no intention to put an end to the term.

Section 34, Code of Civil Procedure, provides that a “ General, Special or Trial Term of a court of record may be adjourned from day to day, or to a specified future day, by an entry in the minutes.” We do not think that the power of a court in regard to adjournments is limited to that which is derived from that section. It may, of course, be adjourned from day to day, or to a specified future day, but we do not think that a failure to appear on the day to which the court was adjourned, not being an adjourned term, Avould, under the circumstances of this case, Avork a dissolution of the court. It is stated that “ every term continues until the call of the next .succeeding term, unless preAÓously adjourned sine die (Freeman on Judgts. § 90), and until that time a judgment may be modified or stricken out.”

The case of People v. Bradwell (2 Cow. 445) does not control. The necessary judges to constitute a court of Oyer and Terminer did not appear on the first day of the term.and that court was not opened on that or the succeeding day, but it was opened in form on the next day thereafter. It was held that the court of Oyer and Terminer failed to exist by reason of the failure of the judges to attend. That case comes under the principle already stated in regard to the failure to attend upon the first day of the term of court.

In People v. Clews (4 Abb. N. C. 256, at 264), no judge appeared and an attempt was made to adjourn the court of Oyer and Terminer by virtue of a letter written by a justice of the Supreme Court, directed to the sheriff and the clerk of the county where the court was appointed to be held, in which letter he directed the court to be adjourned from January I to January 14, 1818, and directed that the order should.be entered in the minutes of the court. It was held simply that a justice of the Supreme Court could not adjourn a court appointed to be held on a certain day by sending a letter ordering such adjournment and not attending such court himself.

In the case of Northrup v. People (37 N. Y. 203) it was held that “ where the statute made it the duty of the justices of the Supreme Court of each district to appoint times and places to hold Courts of Oyer and Terminer within their respective districts, and where they had made such appointments a judge had no authority to adjourn such court to he held at any other place within such district.” The court ivas held at a place provided for by statute, and it is entirely plain that no court would have the right to adjourn to some other place than the one so provided.

These cases, we think, do not touch the question.. If the court in this case lost jurisdiction, at what particular time did it lose it ? It adjourned on the twelfth until the thirteenth of March at ten o’clock. If the court had appeared at twelve o’clock noon, would' it have been in time ? If so, would it have been in time if it convened at fifty-five minutes past eleven o’clock that night ? Or is the hour of twelve at midnight the particular moment of time subsequent to which the court could not convene ? Questions of. this kind may be debated ad infinitum, and much learning may be displayed, and much ingenuity of argument exercised in claiming that the judge must appear at the appointed day and hour, or he cannot appear as judge at all. Is there any real force in assuming that a judge might appear at any time of the day to which court was adjourned, up to twelve o’clock at night, but could not appear and take his seat in a legal court one minute after twelve o’clock ? All matters of this kind must stand upon some reasonable foundation, and we think that, under the facts developed in this case, there was not such total loss of jurisdiction in the judges who appeared on the fourteenth of March that they could do no judicial act and continue no trial, even with the consent of the person affected by their proceedings. We, of course, assent to the proposition, generally true, that consent cannot confer jurisdiction of the subject-matter, nor can mere consent make a leeral court out of one which but for the

consent would be wholly without jurisdiction to proceed. But in such a case as this we think the court was not without jurisdiction. The act of God, in the shape of this unprecedented snow storm, prevented an entrance to the court-house during the day of the thirteenth of March; but on the fourteenth, the very earliest time at which approach to the place at which the court was held could be made, the judges and all the-parties in the case, jurors, witnesses, officers etc., came together and continued the trial of the case which had. been adjourned the preceding Monday. As I have said, there is no pretense of any harm having been done, and the defendant has not claimed that he suffered in any way, in mind, body, or estate on account of the continuing of the trial on the fourteenth. If such had been the fact, and the court had, notwithstanding, continued the trial, and it had been made to appear that, by reason of this continuance, some possible prejudice might have inured to the defendant, it may very well be that it would have been ground for setting aside the verdict, and if refused in the trial court, for an appeal to another court where the defendant would have had his rights guaranteed to him. We cannot think that any rule of law compels us to set aside this verdict, and no suggestion of prejudice to the defendant appears in the record or is claimed to exist by reason of this continuance.

We think the judgment of the General Term should be reversed and that of the Court of Sessions of the county of Montgomery affirmed.

All concur.

Judgment accordingly.  