The transcript of the justice of the peace shows a continuance at the time the summons was returnable, without showing whether either of the parties appeared. But it also shows affirmatively that the plaintiff did not appear at the time to which the suit was continued, and we have no hesitation in saying the record thus proves by its own terms that the justice then lost all jurisdiction of the case.
Sec. 33 of Chap. 79 of the Revised Statutes is so plain and unambiguous there is no room for construction. It furnishes the exclusive rule for the action of the justice in such eases. It provides that if the plaintiff or his agent shall not appear at the time appointed for trial, in any suit, and no sufficient reason shall be assigned to the justice why such plaintiff or his agent does not appear, the justice shall dismiss the suit, unless the defendant shall consent that such suit shall be continued to another day.
The case is not altered by the fact that the defendant- has cross-claims against the plaintiff. The court, in a suit before a justice, is not, as in courts of record, vested with the power to proceed to a trial on account of the defendant having an offset. The j ustice has no discretion.
The command of the statute to dismiss is peremptory, except in the case specified. The question presented to the justice who rendered the judgment in question was not one calling for his opinion on any question of law or fact with regard to which he was liable to error, but it was a question as to the actual existence of a fact about which there was no liability of mistake.
“Whenever a question is one of opinion merely, whether it be of value, or of the weight to be given to evidence legally admitted, there is no doubt discretion is subject to no dispute. But when the right to act depends on the actual existence of facts, nothing short of such actual existence will suffice, and opinion is no account.” Wall v. Trumbull, 16 Mich. 250.
The judgment of the justice was without jurisdiction. The court below erred in refusing to quash the execution and to order the levy thereunder released.
The order of the Circuit Court is reversed and remanded.
Reversed and remanded.