Myrick v. Superior Court

Foote, C. — Application for a writ of review. The case in hand originated in a Justices’ Court to recover damages caused by the trespass of stock on plaintiff’s land. A change of venue was obtained to another Justices’ Court, but before such transfer of the cause, an answer, demurrer, and motion to dismiss had been filed by the defendant. When the action came on for trial, a second motion was made by the defendant to dismiss it, on the ground that the justice in whose court it was originally brought had failed to indorse on the complaint that it was “filed” as required by law. The motion was sustained and the case dismissed, a judgment being rendered in favor of the defendant for costs. Thereupon the plaintiff appealed upon “law and facts” to the Superior Court. There the point was made that such court had only jurisdiction to affirm or reverse the judgment of the Justices’ Court, but had no power to try the case on the issues raised by the pleadings. But the appellate court took a different view of the matter, and trying the case upon the issues of law and fact, rendered a judgment for the plaintiff.

The taking of the appeal on "law and facts” would not give the right to have the action tried de nova, unless a trial upon the issues of fact as made in the Justices’ Court had already been had in that tribunal. Such issues were there made up, and there is no objection urged in any quarter that jurisdiction did not there exist to -try the cause. The justice refused to enter upon such trial, upon the ground ,that the complaint, although actually filed, was not so indorsed, and dismissed the action.

If the Superior Court in this instance had a right to try a case upon issues of fact, which was within the jurisdiction of a justice of the peace, who had never passed. [100]upon such issues as tendered, the former tribunal might be said to have original jurisdiction in such cases, which is contrary to the statute.

J.t will not do to say that a justice of the peace by declining to perform so plain a duty, even under a mistaken opinion of law, can force an appellate tribunal to assume his place. He must first proceed to do what the law requires of him, then, if his judgment upon issues of fact be appealed from, a new trial of them can be had in the manner declared by law to be appropriate. In effect, he dismissed the case at the costs of the plaintiff. The Superior Court should have reversed that judgment, and sent the case back for trial on the issues tendered by the pleadings.