Mitchell v. Bradberry

Blandford, Justice. The defendant in error brought his action against plaintiff in error in a justice’s court to recover damages by reason of the fact that the plaintiff- in error had killed, or caused to be killed, certain sheep, which sheep had broken into Mitchell’s field, the same not being enclosed by a lawful fence. The justices rendered judgment in favor of Bradberry. Mitchell appealed to a jury. ■ On the trial before the jury, there was no objection made to the justices as to how the jury was constituted, and no judgment of the justices rendered thereon. The jury found for Brad-berry, and Mitchell filed his petition for certiorari, in which 16 he alleged that the jury was illegally made up, because, as he alleges, the names of some of the jurors who tried the case were not of those on the lists of names of jurors furnished by the jury commissioners to the clerk of the superior court. This might have been good cause of challenge to such jurors as had not been returned by the jury commissioners, if the same had been made to the court before the jury had been empanelled, but it cannot be taken advantage by certiorari, when the justice’s court had rendered no decision or judgment thereon. By section 4049 of the Code, it is declared that a writ of certiorari will lie for the correction of errors by justices of the peace. By the act of 1850 (Code, §5052), it is enacted, when either party in any cause in a j ustice’s court . . . shall be dissatisfied with any decision or judgment in such cause, such party may apply for and obtain a writ of certiorari by petition to the superior court, in which petition he shall plainly and distinctly set forth the errors complained of. There being no errors alleged as having been committed by the justices of the peace, the application for certiorari was properly dismissed. The verdict of the jury was fully sustained by the evidence. Judgment affirmed.