Hawks v. Hall.

CoNkojr, J., after stating the facts: This record presents,' the somewhat remarkable feature of an appeal from a judgment to which there is no exception and no suggestion of any *178 error committed, at any stage of tbe trial. Tbe point upon which we are asked to reverse tbe judgment was not made below, and tbe fact upon wbieb tbe motion is based was not known to counsel until after tbe judgment was rendered and the court adjourned. To meet this condition tbe defendant’s very ingenious counsel insists that tbe failure of tbe justice to sign tbe return on appeal deprives tbe Superior Court of any jurisdiction to bear or determine tbe case; tbat tbe proceedings bad in tbat court arc absolutely void. We cannot concur with this view. It is not to be questioned that the Superior Court lias no other than appellate jurisdiction. The appeal perfected by notice and the payment of tbe justice’s fee, takes tbe case into tbe Superior Court without any further action on tbe part of tbe appellant. If tbe justice fails to discharge bis duty to make bis “return of tbe appeal” be may be compelled to do so by attachment, and if tbe return be defective, tbe judge may direct a further or amended return. Code, sections 878, 879. It will be observed tbat the return to be made is “of the appeal,” clearly showing tbat it constitutes no essential element in the appeal, but simply a statement of what was done in tbe inferior court. It would be trifling with tbe administration of justice to permit an appellant who bad done everything required of him to take and perfect an appeal, to be deprived of his right after a trial in tbe appellate court because of an inadvertent failure of tbe justice to sign his name to “the return of tbe appeal.” If tbe attention of the court had been called to tbe omission, it would have summoned the justice and permitted him to sign tbe return at any time during the trial or even after judgment. If either party was not content with tbe return as made, tbe court, upon motion, would have directed a “further or amended return,” as provided by section 879. There is no merit in the defendant’s contention, and the judgment must be Affirmed.