Wilcox v. Clement , 4 Denio 160 ( 1847 )

By the Court, Bronson, Ch. J.

The first question is, whether the defendant was bound to wait five minutes after an hour had elapsed from the time appointed for his appearance. I think not. The words of the statute are: “ Judgment of nonsuit, with costs, shall be rendered against a plaintiff—if he ' fail to appear on the return of any process, within one hour after the same was returnable.” (2 R. S. 246, § 119.) If the plaintiff had appeared before the defendant left, or if he had been in sight and approaching, and the justice had told the defendant that he was about to call the cause, then it seems that the defendant would have gone away at his peril. (Baldwin v. Carter, 15 John. 496; Barber v. Parker, 11 Wend. 51.) But here, the plaintiff had neither arrived, nor was there any thing to show that he intended to appear; and the justice was not engaged in any other official business. If, under such circumstances, the defendant must, at his peril, wait beyond the hour, the statute is, in effect, repealed. When the law says that the plaintiff shall have but one hour, the justice has no right to say that he shall have sixty-five minutes. If the plaintiff’s watch is five minutes behind the true time, he must keep himself five minutes ahead of his watch.

When the authority to appear by attorney is not admitted, it must, in all cases, be proved. (2 R. S. 233, § 45.) If Mr. Beach, the corporation attorney, could delegate his authority, it was not proved that he had requested Mr. Shepherd to act for him; and although Mr. Shepherd “ had been spoken to by Samuel Chapman,” it does not appear that Mr. Chapman had any right to meddle with this matter. The authority of the attorney was not sufficiently proved.

Although no issue was joined, and the defendant did not appear, the justice might, perhaps, have adjourned to a future day; (Thompson v. Sayre, 1 Denio, 175;) but I am not aware of any authority to hold the cause open for four days. On an adjournment to a day certain, the defendant would know when to appear; but if the cause can be kept open for an indefinite period, the defendant could only be sure of being present at the right time by taking up his quarters with the justice until a new movement should be made.

Judgments reversed.