
    John P. Handshaw, App’lt, v. John S. Arthur, Resp’t.
    
      {Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    Justice of the peace — Pebsohal liability.
    An action, in justice's court, is, ipso facto, discontinued by the failure of the plaintiff to appear on an adjourned day, though the justice, at the request of the plaintiff, had the day before adjourned the trial to a subsequent day, and subsequent acts of the justice are without jurisdiction and he is liable to defendant for damages sustained by the issuance of an execution.
    Appeal from a judgment, dismissing the complaint.
    
      Livingston Smith, for app’lt; Ackerly & Miles, for resp't.
   Dykman, J.

— The defendant, John S. Arthur, is a justice of the peace of the town of Smithtown, in Suffolk county; and on the 21st day of April, 1894, Charles 0. L’Hommedieu commenced an action before the defendant, as such justice of the peace, against John P. Handshaw, the plaintiff in this action, to recover $28.40, which he claimed Handshaw owed him. The summons in that action was signed on that day by the defendant, Arthur, and the same was made returnable on the 28th day of April, 1894. It was delivered to the constable on the day it was signed, and it was duly served on Handshaw on the same day by the constable, who-made his return thereon to Justice Arthur before the return day thei'eof, in the manner prescribed by law. On the return day of the summons the lawyer for the plaintiff, L’Hommedieu, appeared before Justice Arthur, with a letter from Handshaw, addressed to Justice Arthur, in which Handshaw demanded a jury trial, and requested Justice Arthur to adjourn the case until May 5, 1894. In accordance with the demand of Handshaw, Justice Arthur drew a jury and issued the venire summoning the jury to appear on the 5th day of May, 1894, and adjourned the case to that day. In consequence of the neglect of the constable to whom the venire was delivered, the jury was not summoned, and did not appear on the 5th day of May, and neither of the parties (either the plaintiff or the defendant) appeared on that day. When the lawyer for the plaintiff learned that the constable had failed to summon the jury, he called on Justice Arthur, on Friday, May 4th, and told the justice that it would be necessary to summon another jury. The justice expressed some doubts to the lawyer as to the legality of the procedure, but finally yielded to his demand, and drew another jury, and issued a venire therefor, returnable on the 10th day of May, jL894, and adjourned the case to that day. The constable summoned the second jury, and on the 10th day of May the jury appeared, together with the plaintiff, L’Hommedien, and his counsel. The defendant, Handshaw, did not appear. The jury was then drawn, and, after hearing the evidence for the plaintiff, returned a verdict in his favor for $28.40, — the full amount of bis claim against the defendant. The judgment was docketed by Justice Arthur, and in a short time thereafter, on demand of the lawyer for the plaintiff, Justice Arthur issued an execution thereon, under which -the constable thereafter levied upon and sold certain articles of personal property belonging to the defendant, Handshaw. This .action was then brought by Handshaw against the justice of the peace, Arthur, to recover damages For issuing the execution under which the levy and sale was made.' The action was first tried ■on the 28th day of June, 1894, before a justice of the peace and a jury, and the jury rendered a verdict for the defendant. Handshaw then appealed for a new trial to the county court of Suffolk ■county, and the same was brought on for trial at the county court on the 31st day of December, 1894, before the county judge and a jury; and, after hearing the evidence, the plaintiff was non-suited, and judgment dismissing the complaint was thereafter ■entered. From that judgment the plaintiff, Handshaw, appeals to this court.

Courts of justices of the peace are courts of inferior and limited jurisdiction, and do not proceed according to the course of the common- law. They are confined strictly to the authority conferred upon them, and can take nothing by implication. Such was the rule previous to the Code of Civil Procedure, and now the rule has been embodied in the Code by section 2861, as follows: “A justice of the peace has such jurisdiction in civil actions and special proceedings as is specially conferred upon him by the statute, and no other.” When they have jurisdiction, their errors and irregularities cannot be reviewed collaterally; but, if they proceed without jurisdiction over the person, then their proceedings and judgments are void. It was also settled in this state, before the Code, that where the plaintiff failed to appear upon the return of the process, or upon the day to which the case had been adjourned for trial, the action was unequivocally discontinued, and the parties stood as if the same had never been commenced. Wailing v. Toll, 9 Johns. 140; Hubbard v. Spencer, 15 id. 244. That rule has also been codified, and is contained in the Code, in this language: ’

‘Judgment of nonsuit with costs must be rendered against the plaintiff prosecuting an action before a justice of the peace in either of the following cases : * * * (2) If he fails to appear within one hour after the summons is returnable or within one hour after the time to which the trial has been adjourned.” Section 3013.

When, therefore, the plaintiff failed to appear on the 5th day of May, the time to which the trial of that action had been adjourned, the jurisdiction of the justice over the parties ceased; and he "was then required, by the peremptory demand of the statute, to render judgment of nonsuit against the plaintiff, with costs. He retained control of the case for no other purpose. The failure of the plaintiff to appear on the adjourned day deprived the justice of jurisdiction over the defendant, and the adjournment of the case, and the subsequent proceedings thereon, were without jurisdiction and void. They were more than erroneous. The distinction is this : Where the justice of the peace has jurisdiction, but errs in its exercise, then his acts are not void, but voidable only, and he incurs no personal liability therefor. But where he has no jurisdiction whatever, and then undertakes to act, his acts are coram non judice and void, and render him personally liable for their consequences. Butler v. Potter, 17 Johns. 145. It is very true that the defendant, as justice of the peace in the original suit, acquired jurisdiction of the parties down to the 5th day of May, but did he have any jurisdiction or discretion over the question of adjournment? If he had, then the adjournment made by him on that day is only an error in judgment, and it is contrary to established principles to impose personal liability for a judicial act. But reflection has conducted me to the conclusion that he had no jurisdiction to exercise in relation to the adjournment which he made in the absence of the parties on the 5th day of May. The plaintiff then failed to appear within one hour after the time to which the trial had been adjourned, and in that case the statute commanded the justice to render judgment of nonsuit against the plaintiff, with costs. He had no power to do more, or otherwise. When, therefore, he undertook to adjourn the case upon his own motion, he exceeded his authority and jurisdiction. The conclusion seems to be inevitable, and we cannot vary general rules of law, or refuse to apply them to meet extraordinary cases. The judgment should be reversed, and a new trial granted, with costs to abide the event.

Brown, P. J., concurs.

Pratt, J.

(dissenting). — It is conceded that on May 5th, when the parties failed to appear, the justice should have entered a judgment of nonsuit. Mistaking his duty, he adjourned the cause, on his own motion, to May 10th. Of that adjournment both parties had notice, — the plaintiff’s attorney giving notice to the defendant. On the adjourned day the plaintiff appeared, and, in the absence of defendant, proved his case. Judgment was entered, execution issued, property sold, and the justice is now sued in trespass. There was, obviously, no intentional injustice; and we think it clear the the action complained of was judicial in its character, for which the justice is not responsible in damages. Lange v. Benedict, 73 N Y. 12. The error was in failing to give a proper judgment. The remedy was by appeal. Judgment •affirmed, with costs.  