By the Court,
Safford, J.This cause was originally brought before a justice of the peace in the county of Jackson, and judgment *567was rendered' therein in favor of the plaintiff, for the snm of one hundred and thirty dollars and costs. Thereupon the defendants filed in the district court of said Jackson county their petition in error, together with a transcript of the proceedings before the justice. Such transcript contained a bill of exceptions allowed by the justice, and reciting in detail the incidents of the trial, and the rulings of the justice therein.
A hearing being had upon the said petition in error, transcript and bill of exceptions, the district court reversed the judgment of the justice of the peace, and thereupon the said plaintiff brings up the proceedings of the said district court for review. It is contended on behalf of the plaintiff in error, that the bill of exceptions, taken before the justice of the peace, ought not to have been considered by the district court; and the reason assigned is, that the same was not allowed until four or five days after the return day of the summons, and trial of the cause. It does not seem to us that this objection is well taken, and besides, it would seem that the plaintiff claims too much on this behalf. The transcript does not show that any other action was had by the justice, than such as would operate in effect to continue the proceedings for the purpose of allowing a bill of exceptions to be made out, from the 25th to the 30th of November, 1867, and that such was the understanding of the justice, himself, is deducible from an inspection of the record. In his . docket he narrates the several steps taken in the case, beginning with the filing of plaintiff’s petition, and issuance of summons thereon, which summons was made returnable on a day certain; on the return day, all the proceedings are noted in their proper order, up to and inc] uding the j udgment and award of execution. Then *568immediately following, but'under date of five days later, comes the entry showing the allowance of a bill of exceptions — the bill of exceptions itself, and that time had been given by the justice for the purpose of preparing the same, without objections from any one. Then follows the certificate of the justice, as to the correctness of the transcript, having reference to the whole of it, bill of exceptions and all.
We think that a fair and liberal construction of this record justifies us in holding that the justice’s court was open for the filing of the bill of exceptions until the expiration of the period given in which to reduce it to writing, and especially so, there being no objection made to such order. Besides, we know of no law which prohibits a justice from so continuing his proceedings in a case, as to cover a bill of exceptions, filed as in this instance; and generally, as to all inferior courts, time may be given in which to reduce exceptions to writing, though not beyond the term at which trial is had; but a term of court may be continued for such purpose.
Taking this case, then, as it appears upon the transcript and bill of exceptions, was the district court justified in reversing the judgment of the justice % The case shows that at the time set'for trial, the parties duly appeared, and that the defendants moved the court for a continuance for thirty days, on the ground of absent testimony. In making this application, the defendants offered proof, fully complying with the provisions of §62, p. 627 Comp. L. ’82. Having done so, and no counter-showing having been made or attempted,* it was not a matter of discretion with the justice, to either grant or refuse the application ; but it *569"became and was the right of the- defendants to have such continuance. It was error, therefore, for the justice to refuse it.
We also think that, under the facts and circumstances apparent' in the case, the justice committed a farther error in refusing the application of the defendants, for leave to file an answer, such being the force and meaning of the motion made by defendants, as shown by the record. The justice might well have required such 'answer to be filed without delay, or within a very limited period of time, but to refuse it altogether, does not seem to us as calculated to promote justice.
In cases like the one presented in the record, the law as it now stands (§2, p. 77, L. ’67), requires a defendant to file a demurrer or answer to the petition of the plaintiff, on or before the day of trial. Now, a fair construction of the language used, -would seem to indicate that if such defendant saw fit-to claim it, he would be entitled to file his demurrer or answer at any time on the trial day, before the trial should actually commence.
He might, however, expressly waive such right; and he might and would do so by allowing the plaintiff to proceed with" his case without any pleading having been filed, or attempted to be filed, on his part.
The judgment of the district court is affirmed.
All the justices concurring.Are we to infer from this» that counter-affidavits would be admissible ? — Rep.