
    EMMA H. SCHWENK, EXECUTRIX OF THE ESTATE OF JOHN G. SCHWENK, DECEASED, AND CHARLES E. CALDWELL, COPARTNERS, TRADING AS SCHWENK & CALDWELL, DEFENDANTS IN CERTIORARI, v. FILIMINO DeMAIO, PROSECUTOR.
    Argued June 1, 1909 —
    Decided November 8, 1909.
    1. Affidavits taken to contradict the return of a justice of the peace, made to a writ of certiorari removing- his judgment rendered in the Court for the Trial of Small Causes, are irregular.
    2. To open a judgment rendered against the defendant, both surprise and merits must be shown.
    On certiorari.
    
    Before Justices Reed, Bergen and Voorhees.
    Rot the prosecutor, Edwin F. Miller.
    
    Rot the defendants, Herbert C. Bartlett.
    
   The opinion of the court was delivered by

Voorhees, J.

The return to this writ of certiorari removing a judgment in the Court for the Trial of Small Causes rendered for the plaintiff, shows that the action was brought for the recovery of a balance due on a book account, for goods sold to the defendant. The summons was return- . able December 10th, 1908. It appears by the record that before the return day of the summons, by request of defendant’s counsel, the ease was adjourned to December 15th, and that on that date the respective attorneys of the plaintiff and defendant appeared, but the defendant did not appear. The cause being moved, it was tried and judgment given.

The reasons for reversal are — 'first, that the justice had no jurisdiction; second, that he had lost jurisdiction because he had previously adjourned the cause until December 22ñ, and proceeded to give judgment on December 15th.

The controversy in the case is, whether the justice adjourned the case to December 15th, as his record shows, or to December 22d. By rule the justice was called upon to certify to the facts regarding the adjournment. His return shows that “after some discussion, I stated I would make the date the following Monday, the 15th, and I made a pencil memorandum on the margin of the summons, ‘adjourned till December 15th, 1908.’ ” After the justice’s return- to the rule had been made, an order to take depositions was granted, and under this, affidavits were taken to contradict the justice’s return. Such proceeding is irregular. Paterson, &c., Railroad Co. v. Ackerman, 4 Zab. 535. The case of Horner v. Conover, 2 Dutcher 138, is not applicable, for that ease was decided in 1856, before the enactment of the present statute concerning appeals from justices’ courts. The old statute (Nix. Dig. 466, § 43) provided that no appeal would lie from judgments by default or by confession or in the absence of the defendant or where the trial did not take place in his presence. Our present statute grants an appeal in such cases except where the judgment is by confession. So, that, on the face of the record, the justice, at the time the judgment was rendered, had jurisdiction of the parties and of the subject-matter of the litigation. The justice having certified that he had made the adjournment to the 15th of December, and the rule to take affidavits being irregular to contradict such return, he did not lose jurisdiction. That being so, defendant’s remedy is by appeal, not by certiorari.

The writ will be dismissed, with costs.  