Singer Manufacturing Co. v. Walker & Co.

Hall, Justice. 1. Where judgment has been rendered in a justice’s court against the defendant in a suit, and he enters an appeal to a jury in that court, can the justice dismiss the appeal, on motion of plaintiff, because the defendant fails to put in an appearance and defend when the case is called for trial upon the appeal? This is the only question made by the record which it is necessary to consider. We cannot concur with our learned brother of the superior court in his judgment that the absence of the appellant, who was the defendant in the suit, from the trial when the appeal was called, was a sufficient reason for dismissing his appeal. Our law expressly provides that an appeal to the superior court is a de novo investigation; and that it brings up the 651 whole record; and declares all competent evidence admissible on the trial of thereof, whether admitted on a former trial or not; and that either party is entitled to be heard on the whole merits of his case. Code, §3627, and citations. Appeals in a justice’s court are tajeen in the same way and are governed by the same rules as those in the superior court, Ib. §4157 (a). 2. As to the other question made by the record, viz. that there was error in refusing a motion by the plaintiff therein to amend the ground of his petition for certiorari, we think there was no error; and on the first ground only we direct that the judgment be reversed.