Reed v. DeLaperiere & Smith

Simmons, C. J. 1. Where on the trial of a claim case before a justice of the peace the magistrate rendered a judgment in these words: “After hearing the evidence in this case, it is adjudged and ordered that the claim be dismissed at claimant’s cost, and property found subject, and the fi. fa. proceed against said property”: Held, that this was an adjudication upon the merits of the claim, and that it was the claimant’s right to enter an appeal to a jury in the justice’s court. 2. Such an appeal having been entered and a verdict having been rendered for the claimant, and the plaintiffs having taken the case up by certiorari, it was error to sustain the certiorari on the ground that 'the only effect of the judgment rendered by the magistrate was “to dismiss the claim,” and to hold that no appeal to the jury from that judgment could be lawful. 3. The burden of proof being upon the plaintiffs and it not appearing either from the petition for certiorari or the magistrate’s answer that they made out even a prima facie case before the jury, they were in no view of the case entitled to a verdict, and it is therefore immaterial whether or not one of the jury was or was not disqualified by reason of non-residence in the district in which the case was tried. The certiorari ought to have been overruled generally. Judgment reversed. W. B. Blown and G. H. Prior, for plaintiff in error. Dean & Hol)bs, contra.