Derby, Jr. v. Heath.

If the justice had power to render the judgment, the bond clearly was filed in time, and the court of common pleas had jurisdiction.

We claim that the failure by the justice to render his decision on motion for new trial, until after four days from the rendition of the verdict, and to enter final judgment, until the third of July, was only an irregularity, or erroneous. Robinson v. Kious et al., 4 Ohio St., 593; Stallup v. Baker et al., 18 Ohio St., 545.

If the justice in rendering judgment acts judicially, impliedly he has jurisdiction to act, and a wrong decision does not destroy his jurisdiction. If he has jurisdiction and acts erroneously the party aggrieved may either institute a proceeding in error to reverse, or may within the statutory period after judgment, appeal. Swan's Treatise, 202 (14th edition).

If it were conceded that the justice of the peace lost jurisdiction to enter the judgment, yet once having had it, consent can restore it. 12th Enc., 299, 300; Brown v. Crow's heirs, Hardin (Ky.), 451; Taylor v. Atlantic & Pacific R. R. Co., 68 Mo., 397; Gager v. Doe, 29 Ala., 341; 6 Cush., 563; 49 N. Y., 303; Richardson v. White, 19 Ark., 241; Bostwick v. Perkins, 4 Ga., 47; Fuld v. Dortch, 34 Ga., 399; Cleveland v. Welch, 4 Mass., 591; Butterman's Appeal, 23 Weekly Notes, Pa., 14; Overstreet v. Prown, 4 McC., S. Car., 79.

Phinney & Merrill, for defendant in error.

We claim that the justice by continuing the hearing of the motion beyond the statutory time, exceeded his power granted by the statute, and lost jurisdiction of the subject matter of the motion. His power was limited by the statute,

Derby, Jr. v. Heath.

which is imperative as to the time for hearing the motion and "what the justice then did was coram non judice and cannot be supported." Sibley v. Howard, 3 Denio, 72; Watson v. Davis, 19 Wend, 371; Nicholson v. Roberts, 4 Nisi Prius Rep., 43; 6 S. & C. P. Dec., 233; Stephens v. Santee, 49 N. Y., 39; 12 Am. & Eng. Ency., 301.

His power to entertain the motion for a new trial is derived directly from section 6560, Revised Statutes of Ohio (Giauque's Statutes, vol. 2, page 1617).

The powers of justices of the peace, while treated liberally as to matters of form, cannot be enlarged beyond the power conferred by the statute. Hopple v. Brown Township, 13 Ohio St., 325.

So strictly is this held that in all cases where the justice fails to render, that is, to announce a judgment on a verdict of a jury, in a case tried before him, on the day the verdict is returned, he loses all power of entering it, and it is held to be error for which it will be reversed if he does do so. Dunlap v. Robinson, 12 Ohio St., 530; Robinson v. Kious et al., 4 Ohio St., 593; Eaton v. French, 23 Ohio St., 562; Fairchild v. Keith, 29 Ohio St., 156.

Again, there is no statute giving authority to the justice to hear and determine the motion for a new trial beyond four days after entry of judgment on the verdict, and it is a general rule that when jurisdiction is not conferred upon a tribunal by law, it cannot be conferred by consent of parties. Hawes on Jurisdiction, section 10; Brown on Jurisdiction, section 10; Gilliland v. Admr's of Sellers, 2 Ohio St., 223; Dayton & W. R. R. v. Marshall, 11 Ohio St., 501; McLeary v. McLain, 2 Ohio St., 368; Rosebrough v. Ansley, 35 Ohio St., 107;

Derby, Jr. v. Heath.

Vogel v. Lawrenceburg Tobacco Mfg. Co. 49 Ind., 218; Fox v. Meacham, 6 Neb., 530, 535; Cheney v. Woodruff, 6 Neb., 151.

The authority of the justice is derived wholly from the statute, that is the chart and the compass by which he is to be guided. Thompson v. Church, 13 Neb., 287. 289; Perkins v. Jones, 28 Wis., 243; Hull v. Mallory, 56 Wis,, 355.

The law fixing the place for holding court is mandatory, and proceedings had elsewhere are void for want of jurisdiction of the subject matter. White v. Riggs, 27 Me., 114; Northrup v. People, 37 N. Y., 203.

Section 594, Revised Statutes, requires a justice in all continuances to state the time to which the court is adjourned. Crandall v. Balch, 20 Wis., 639; 2 Freeman on Judgments, sec. 526.

The only judgment under the statute that affords the least valid ground for an appeal, is the judgment rendered June 21st, twelve days before July 3d, and from this no appeal was taken.

If the justice's docket shows a trial and then a judgment, the judgment will be deemed as of the date of the trial, though the appeal bond recites a later date. Hoagland v. Schnoor, 17 Ohio St., 32; Landon v. Reed, 10 Ohio, 202.

BY THE COURT:

Since the undertaking for an appeal was entered into within ten days after the order made by the justice on the third day of July, but not within ten days after the judgment entered on the twentyfirst day of June, we are required to determine which was the final judgment from which an appeal might be taken under section 6583 of the Revised Statutes.

Derby, Jr. v. Heath.

It is admitted that the judgment immediately following the return of the verdict on the twentyfirst day of June, was regularly rendered in accordance with the duties of the justice as defined by the statute. Was it vacated or annulled by the subsequent motions of the parties or the orders of the justice? The authority of a justice to set aside a verdict, and the time and manner of the application for its exercise, are conferred and defined by section 6560 of the Revised Statutes. It provides that the aggrieved party's application for that purpose "must be by written motion, setting out the ground for a new trial, and must be filed with the justice within two days after the judgment is entered, and must be determined by the justice within five days after the entry of judgment."

The view generally taken that the liberality exercised with respect to the proceedings of justices of the peace in the exercise of their jurisdiction will not be extended to cases involving their jurisdiction is required by section 4 of article 9 of the constitution. It provides for the election of such officers and, without conferring upon them any jurisdiction, that "their powers and duties shall be regulated by law." The power is, therefore, necessarily limited by the terms of the act granting it. The mandatory terms of the statute in question very clearly limit the power of the justice to set aside a judgment which he had entered according to law, to five days from its rendition. Being, therefore, without authority at the time of making them, his orders were ineffectual to vacate the judgment entered on the twenty-first day of June, and it was and continued to be the final judgment in the case.

Oglesby, Exr., v. Thompson.

This view of statutes conferring authority upon justices, has been taken by this court in Dunlap v. Robinson, 12 Ohio St., 530, and Eaton v. French, 23 Ohio St., 560. The same view was taken of a provision identical with this in Vogel v. Lawrenceburgh Tobacco Manufacturing Company, 49 Ind., 218. Judgment affirmed.

OGLESBY, EXR., v. THOMPSON.

Partnership-Suit between partners for account--Can be no judgment until balance ascertained-Rule as to burthen of proof.

1. In a suit for an account by one partner against another, no judgment can be rendered in favor of either party for any sum until the account has been stated, and the balance due either, if any, thus ascertained.

2. The burthen of proof in such case is on the plaintiff to furnish the evidence requisite to enable the court to state the account; and if he fails in this he fails in his action, and the petition should be dismissed, unless for good cause shown, a new trial is allowed.

(Decided October 11, 1898.)

ERROR to the Circuit Court of Warren county.

W. F. Eltzroth and W. Chester Maple, for plaintiff in error.

W. C. Thompson, for defendant in error.

The arguments of counsel and cases cited are sufficiently indicated in the opinion.-Reporter.

MINSHALL, J. The plaintiff below, William C. Thompson, on April 27, 1894, commenced in the common pleas court of Warren county an action against Joseph M. Oglesby, executor of Thomas F. Johnson, deceased, alleging that he and the deceased, on or about the first day of October, 1880,