Opinion
08-26-1851
MANN v. GWINN & als.
Price and Caperton, for the appellant, and Reynolds, for the appellees, submitted the case.
(Absent Cabell, P.)
In a proceeding of forcible entry and detainer, the Court is constituted and then adjourns to a day certain. The Court failing to meet on the day to which it is adjourned, the cause is not discontinued, but stands adjourned by operation of law, to the next term of the County court.
This was a forcible entry and detainer in the County court of Fayette, by William T. Mann against Lockridge Gwinn and others. The warrant of the justice directed the justices and the jury to be summoned to meet on the 14th of November 1849. Accordingly the justices met and constituted the Court on that day, and then on the motion of the defendants, the cause was continued until the 29th of March 1850, to which day the Court was adjourned.
The Court did not meet on the 29th of March; but at the regular term of the County court in June the cause was tried, and there was a verdict and judgment in favour of the plaintiff. The defendant then applied to the Circuit court of Fayette county for a supersedeas to the judgment, which was granted; and on the hearing of the cause in that Court, the judgment of the County court was reversed on the ground that the failure of the special Court to meet on the 29th of March operated as a discontinuance of the cause; and therefore that the County court had no jurisdiction to try the case at the June term of the Court. Mann then applied to this Court for a supersedeas, which was awarded.
Price and Caperton, for the appellant, and
Reynolds, for the appellees, submitted the case.
OPINION
ALLEN J.
The Court is of opinion, that as by the act of 3rd January 1834, p. 76, it is provided that whensoever the justices summoned to form a Court for the trial of any case of forcible entry, shall fail to meet, and no Court be formed on the day appointed, such failure shall not operate a discontinuance of the cause, but the same shall stand continued until the next regular Court of the county or corporation, whether monthly or quarterly; the act by a fair construction, applies as well to a failure of the Court to meet on the day to which it stood adjourned, as to a failure to meet on the day appointed in the warrant; and in either case the cause stands continued to the next County court, and no discontinuance is operated. It therefore seems to the Court here, that the judgment of the Circuit court reversing the judgment of the County court is erroneous; and the same is reversed with costs to the plaintiff in error. And this Court proceeding to render such judgment as the Circuit court should have rendered, it is considered that the judgment of the County court be affirmed, with costs in the Circuit court expended.