PEOPLE ex rel. REYNOLDS v. BARNETT

PEOPLE ex rel. REYNOLDS v. BARNETT. N. Y. Supreme Court, Fourth Department; January, 1878. Bastardy.—Court.—Justices.—Waiter. Under 1 B. 8. 644, §§ 11, 13, which provides that on the person arrested in bastardy proceedings being brought before the justice who issued the warrant, “ the said justice shall immediately call to his aid any other justice of the same county; and the said two justices shall proceed without unnecessary delay,” &c., &c., and “the said justices shall determine who is the father of such bastard, ” &c., &c., if the justice first called in does not appear on an adjourned day, another may be substituted by the written stipulation of the parties entered in the minutes. These proceedings are not criminal proceedings, and a statute provision may be waived. This was an appeal from an order of special term superseding a writ of certiorari. In April, 1876, proceedings under the statute relating to bastards were instituted against one Reynolds, before W. H. Barrett, a justice of the peace of the county of Oneida. Upon the return of the warrant, Justice Barrett associated with him Godfrey W. Miller, another justice of the peace of said county. The proceeding was then adjourned from time to time until June 9, 1876. Upon that day, the parties appeared before Justice Barrett, but Justice Miller did not appear. By consent and verbal stipulation of both parties entered in the minutes of the proceedings, R. U. Shermar, another justice of the peace of the county of Oneida, was associated with Justice Barrett in place of Justice Miller, and the question at issue was tried before them. Reynolds was adjudged to be the father of the child and an order of filiation was made. From that order, Reynolds appealed to the Oneida county court of sessions. At a regular term of that court held in December, 1876, appellant’s counsel moved to quash the proceedings and discharge the defendant on the ground that Justices Barrett and Miller constituted the legal court to try the issue, and that the court as thus organized, could not be changed or modified even by consent. That by substituting Justice Sherman in place of Justice Miller, the court had lost its jurisdiction, and that the same could not be restored even by consent. That the order of filiation made by Justices Barrett and Sherman was vbid. The court of sessions denied the motion. Thereupon, on the application of the appellant and before a trial had been had in the court of sessions the supreme court issued a writ of certiorari to review the proceedings. Respondent then moved at the Oneida special term held in April, 1877, to supersede and set aside the writ on the ground that the writ had been improperly issued in that it could not properly issue to review a proceeding that had not been finally determined. That it could not issue until the proceeding had been tried in the court of sessions, and a final decision had in the matter. Argument was heard at the same time on the motion to quash and supersede the writ, and on the return to the writ. Risley, Stoddard & Matteson, for the appellant. Lindsley & Dunmore, for the respondent. [MAJORITY — Hardin, J.] Hardin, J. The consent and stipulation given before the justices, were a waiver of the relator’s right to have the first justice associated sit. It is competent for a party to waive a statutory or even constitutional provision made in Ms favor in civil proceedings. These proceedings .are not criminal (4 Lansing, 208; 5 Denio, 98; 24 How. Pr. 514). The motion to supersede the writ is granted and the writ set aside, and the proceedings remitted to the court of sessions with ten dollars costs. The appellant appealed from that order to the general term of the fourth department, where the order of special term was affirmed with costs at the January term, 1878.