Sherman v. Rolberg

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. Action before justice of the j>eaee. Judgment for plaintiff. Appeal to the County Court, where the appeal was dismissed, and the judgment of the justice affirmed. Appeal by defendant to this Court.

The judgment was rendered in the Justice’s Court, on the second day of July, 1857. Notice of the appeal was handed to the Justice on the sixth of July, and on the same day notice of appeal was served on the attorney of plaintiff. This notice described the parties to the suit and the justice before whom it was obtained, but stated that the appeal was taken from a judgment rendered on the fourth day of July. The notice given to the justice described the judgment correctly. The justice sent up a copy of his docket and the papers, except the notice. The appeal was taken on questions both of law and fact.

When the case was called in the County Court, both parties appeared, and each asked liberty to make a motion. The plaintiff’s counsel was allowed to make his motion first, and moved to dismiss the appeal and affirm the judgment of the justice, for two reasons : first, there was no notice of appeal on file; second, there was no notice of appeal served on defendant.

The mistake in the date of the judgment, as stated in the notice of appeal which was served on respondent, was not material. The notice was sufficient. It was the duty of the justice to send up the notice of appeal received by him. Code, § 627. The County Court should have given the appellant the opportunity to move for an order compelling the justice to send it up. §627.

The order of the County Court dismissing the appeal and affirming the judgment of the justice is reversed, and that Court will proceed to try the case anew.