The question before us, in this case, is a very narrow one. It is whether a justice of the peace, in a case before him, after having once continued the action himself, and subsequently another'justice also continued it, had, as the statute stood, in March, 1850, any such jurisdiction of the action,- as to enable him, after the parties had appeared before him, and he had, on motion of the defendant, decided to dismiss the action, to render judgment for defendant to recover costs. And if he does, whether such judgment is sufficient to support an action of debt.
The judgment to be defeated, in this mode, must be absolutely void, so as, in fact, to be no judgment. Since the decision of Howe v. Hosford, 8 Vt. 220, it has been considered, that any irregularity in the continuance of an action, by another justice than the one who signed the writ, was to be taken advantage of at the earliest possible time, by plea or motion; and if not so taken, and the case went to trial, it would be regarded as waived, and thus cured; or it the defendant made no appearance, and the justice gave judgment against- him, notwithstanding such irregularity, he could, at most, only have redress by audita querela.
But, at all events, it seems to us, that while the suit is, in form, pending before the justice, and the parties in court, it is competent for the justice, upon dismissing the suit, to give judgment in favor of defendant, for costs. The case is stronger than one of which the justice had no jurisdiction, and in that case, by statute, he may give judgment for costs. But any other judgment, in a *225case where the court had no jurisdiction, would be absolutely void, and might be defeated in an action of debt, if the defect appeared upon the proceedings.
In this case, the error is a mere irregularity, which, if not urged in time, is considered as waived. If the case proceed to trial, it is not even the ground of a writ of error. And if the party do not appear, and the justice proceed to render judgment for plaintiff, possibly it might be set aside upon audita querela, but it clearly is not void. In that case it might be voidable. But in the present case, the judgment of the justice is, to all intents, right. It is neither erroneous or irregular, and is precisely the judgment which was rendered by the County Court, in Whitcomb v. Rood 20 Vt. 49, and which was affirmed by this court.
Judgment affirmed.