
    JUDGMENT — JUSTICE OF PEACE.
    [Trumbull (7th) Circuit Court,
    October Term, 1906.]
    Cook, Burrows and Laubie, JJ.
    C. C. Sigler v. Jesse K. Shaffer.
    
      ■ 1. Parol Evidence Inadmissible to Contradict Justice Docket.
    Where the docket of a justice of the peace shows that judgment was rendered ten days after the return of the verdict by the jury, parol evidence is not admissible to show thá't the judgment in fact was rendered immediately upon the return of the verdict.
    2. Judgment Rendered by Justice of Peace After Ten Days from Verdict is Void.
    Where a justice of the peace fails to render judgment until ten days after the return of a verdict by a jury, such failure works a discontinuance of the action; the judgment so rendered by the justice is absolutely void, and a court of equity will enjoin any further proceedings upon such judgment.
    [For other cases in point, see 5 Cyc. Dig., “Justice of Peace,” §§ 299-312. —Ed.]
    [Syllabus by the court.]
    W. B. Moran and T. I. Gillmer, for plaintiff.
    E. B. Leonard, for defendant.
   COOK, J.

This action is before ns on appeal. Defendant, Jesse K. Shaffer; brought suit before a justice of the peace, against the plaintiff. The action was tried to a jury, which, on June 13, 1904, returned a verdict in favor of Shaffer for the sum of $27.75. On June 23, the justice entered judgment upon the verdict on his docket, reciting that on that date he rendered judgment upon the verdict, against Sigler, for the amount of the verdict and costs. Execution was issued upon this judgment and this action was commenced to restrain Sháffer from enforcing the execution against plaintiff’s property, and that he be perpetually enjoined from making any claim against him upon the judgment.

The theory of counsel for plaintiff is, that, judgment not having been rendered by the justice immediately upon the return of the.verdict by the jury, the justice lost control of the ease; and the judgment is a nullity. In órder for the plaintiff to succeed in the action, that 'theory must be maintained.

Is the judgment of the justice absolutely void as claimed? Evidence was received upon the trial and taken under advisement, tending; to show that the justice did in fact declare that judgment would be entered upon the verdict immediately upon the return of the jury.

The first question, therefore, that .meets us, is, Was such evidence competent? We now think it was not and reject it. It will |>e observed that the justice’s docket shows that the judgment was rendered, not entered, upon June 23, and to admit this evidence is to permit the entry upon his docket to be directly contradicted. It is not a ease where there is no entry at all. Possibly in such case parol evidence might be admissible to show what was done, in order to support the judgment. That question we do not decide for in this case the docket is complete and show's, as we have said, that the judgment was rendered on the twenty-third, and that the verdict was returned on the thirteenth.

The next and important question is what is the effect -of the', justice’s withholding his judgment for ten days? Does it make the judgment absolutely void, or is it only voidable by reason of irregularity to be remedied by a proceeding in error or by appeal to common pleas court.

Revised Statute 6579 (Lan. 10161) provides:

“Upon a verdict the justice must immediately render judgment accordingly. When the trial is by the justice, judgment must be entered immediately after the close of the trial, if the defendant has been arrested or his property attached; in other cases it must be entered at the close of the trial, or if the justice then desire further'time to consider, on or by the fourth day thereafter, both days inclusive.”

Justices of the peace derive all their power from the statutes, and the language of the statute is clear, specific and peremptory and would seem to preclude the justice from rendering judgment at any time other than that provided by the statute.

The case of Robinson v. Kious, 4 Ohio St. 593, is difficult of reconciliation upon this theory, but is also probably as difficult of reconciliation with subsequent decisions. The syllabus is:

“Section 107 of the justices’ code provides that, ‘upon a verdict the justice must immediately render judgment accordingly.’ This provision may not make a judgment rendered upon a subsequent day absolutely void, but it makes it irregular and for such irregularity, when not waived, it is reversible.”

If you take the language of the syllabus literally, it no doubt sustains the proposition that the judgment is not void, but voidable only, and the remedy of the aggrieved party would be by error. It will, however, be observed that the question wTe have did not directly arise' in that case. The question there was, could the successful party, by failing to pay the jury fee,, prevent a judgment and thereby compel a dismissal of the case for want of further jurisdiction ?

In the case of Dunlap v. Robinson, 12 Ohio St. 530, if is held in the third proposition of the syllabus:

“Where a justice of the peace fails to render judgment, or take any other action, for a period of ten months, upon the verdict of a jury rendered in a cause upon trial before him, such neglect of duty, on the part of the justice, works a discontinuance of the action, and such verdict, without judgment, will not constitute a bar to a subsequent suit on the same cause of action.”

In the opinion, after referring to Robinson v. Kious, supra, it is said, page 534:

“A justice of the peace cannot, 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 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. Gamage v. Law, 2 Johns. 192; Taft v. Grosfent, 5 Johns. 353; Green v. Angel, 13 Johns 469; Stoddard v. Holmes, 1 Cow. 245.”

Sutliff, C. J., and Brinkerhoff, J., concurred with Scott, J., who rendered the opinion, in the third proposition of the syllabus, while Peck and Gholson, JJ., dissented. It must be conceded that it is difficult to uphold this decision without overruling Robinson v. Eious, supra.

In the ease of Eaton v. French, 23 Ohio St. 560, it is said:

‘ ‘ Section 107 of the justices ’ act provides, that when the trial is by the justice, judgment ‘must be entered either at the close of the trial, or if the justice then desire further time to consider, on or by the, fourth day thereafter, both days inclusive. ’ This language is clear, specific, and peremptory. The power of the justice must be measured by the statute. Accordingly, it was held in Robinson v. Kious, 4 Ohio St. 593, that a judgment rendered by a justice after the time allowed by the statute, was, for that reason, reversible; and the holding in Dunlap v. Robinson, 12 Ohio St. 530, would warrant the conclusion that such delay works a discontinuance of the action.”

From these cases., taken together and especially from the language of the statute, we are of opinion that the failure of the justice to immediately render judgment upon the return of the' verdict by the jury worked a discontinuance of the action; that he thereafter had no authority to render and enter the judgment and that the same is absolutely void!

A decree will be entered enjoining the defehdant from taking any further proceedings upon the execution he caused to be issued, ■and from causing any further proceedings to be taken upon the pretended judgment. Defendant to pay costs.

Burrows and Laubie, JJ., concur.  