
    THE STATE, CHRISTINE STEINLEIN, PROSECUTRIX, v. THOMAS G. FOLWELL, DEFENDANT.
    1. A pax-ty against whom a judgment is rendered in a justice’s court, ire a matter over which the justice had no jurisdiction, can raise the objection to the jurisdiction of the court either upon a certiorari or upon an appeal.
    2. If the justice has jurisdiction over the subject matter of the action, but has lost jurisdiction over the party by irregular adjournments, the party appealing cannot raise this objection upon appeal.
    This writ of certiorari brings up a judgment of the Atlantic Court of Common Pleas, entered upon an appeal from a justice’s court.
    
      When the cause was moved in the Court of Common Pleas the counsel for the appellant and defendant made an offer of testimony, which was overruled by the court. The overruling of this offer is the single ground of complaint. The offer was to prove that the defendant obtained an adjournment in the justice’s court; that the justice before the arrival of the day to which the cause had been adjourned announced that he Avould be absent on that day, but would try the cause on another named; that defendant, both on the first adjourned day as well'as upon the day named by the justice, attended at the times and places mentioned as the times and places for the trial, and found that the justice was absent; that the justice had held his court in another place, and there tried the cause and rendered the judgment.
    The Court of Common Pleas overruled this offer, and proceeded to try the cause and rendered judgment for the plaintiff.
    Argued at June Term, 1890, before Justices Reed and ‘Garrison.
    For the prosecutrix, John J. Crandall.
    
    For the defendant, August Stephany.
    
   The opinion of the court was delivered by

Reed, J.

This case is controlled by Barclay v. Brabston, 20 Vroom 629. Where the court for the trial of small causes had no jurisdiction over the subject matter of the action, relief can be had either by certiorari or by appeal. Williamson v. Middlesex Common Pleas, 13 Id. 386. But when the cause of action is Avithin the jurisdiction of the court, and there ivas lack of jurisdiction over the party appealing by reason of irregular adjournments, the taking of an appeal operated as a Avaiver of the irregularity. The remedy was by certiorari.

Judgment is affirmed.  