
    H. W. Cowan vs. M. B. Farrell, et al.
    
    Opinion filed April 27th, 1898.
    Justice of the Peace — Jurisdiction.
    A justice of the peace having called a case — the summons therein having been served and the same having been thereafter filed with the justice, with proof of service — the defendants demanded that the papers be produced. The counsel for the plaintiS had them in his possession, and the justice aUowed him time to send to his office to procure them, whereupon defendants withdrew from the case. Held, that the justice did not lose jurisdiction, and that his judgment subsequently rendered was valid.
    Appeal from District Court, Stutsman County; Rose, J.
    Action by H. W. Cowan against Michael B. Farrell and James Farrell. From a judgment of the District Court reversing a judgment of the justice of the peace in his favor, plaintiff appeals.
    Reversed, and judgment of the justice affirmed.
    S. E. Ellsworth, for appellant.
    
      Fredrus Baldwin, for respondents.
   Corliss, C. J.

The appeal is from a judgment of the District Court reversing a judgment of a Justice’s Court. The appeal to the District Court was taken on questions of law alone. The ground on which that court decided the case appears to be that, up to the time of the expiration of one hour after the summons was returnable, the summons, with proof of service, had not been filed with him. The record shows the contrary. The following entry appears in the justice’s docket: “Summons issued in the above case on the 4th day of October, 1895, returnable on the nth day of October, 1895, one o’clock, p. m., and returned on the 4th day of October, 1895, personally served on Michael B. Farrell and James Farrell, defendants, by J. J. Eddy, sheriff.” There is authority for the proposition that the mere fact that the return of the summons, with proof of seiwice, has not been made at the time the case is called, is not fatal to the juxisdiction of the court. It would seem that it is the sex-vice of the pi'ocess which confers jurisdiction, and it is undisputed that such service had been duly made. See Lawrence v. Howell, (Iowa) 2 N. W. Rep. 617.

Counsel for defendants seeks to sustain the judgment below on the gx'ound that the justice lost juxdsdiction because he refused, on demand of such counsel at the expiration of the hour, to call the case for trial. The x-ecord does not sustain his position. It shows that the case was called, and that, after it was called, defendants withdi'ew fx-om the case, claiming that the justice had lost jurisdiction. It appears that the summons, complaint, and pi'oof of sex-vice were in the possession of counsel for the plaintiff. As soon as they were called for by counsel for defendants, plaintiff’s counsel sent to his office for them. It was at this time that defendants withdrew from the case. They did so at their peril. The case had been called. They were in court in person, and by their attoxmey. The summons had been duly served upon them. All they could complain of was the fact that the justice gx-anted the plaintiff a short delay in which to px-ocure and px-oduce the necessary papex-s, which he thought he had inadvertently left at his office, but which in fact he had in his pocket at the time, though he did not discover the fact until a little later. It is clear that the justice had acquii'ed, and that he never lost, jui'isdiction, and the judgment is therefox'e valid. The judgment of the Distinct Court is reversed, and that court is directed to enter a judgment in favor of the plaintiff and against the defendants for the amount of the judgment of the justice’s court, with interest, together with costs in this court, and in the District Court also.

(75 N. W. Rep. 771.)

All concur.  