Casey v. Briant

White. J. This, together with nine other cases, were commenced before a Justice of the Peace of Marion county, by John Casey, the plaintiff in error, who [54] sued as well for himself as the State, to recover of John Briant, the tax collector, twenty dollars in each case, a forfeiture for failing to administer the oath prescribed by ’statute to persons rendering a list of their taxable property. Judgments were rendered, against the defendant in eight of the cases; he failed to appeal and afterwards removed them by certio-rari, into the County Court. There was one petition', and but one writ, by virtue of which all the cases were removed. A motion was made in the County Court to dismiss for insufficiency apparent on the face of the petition. This was overruled, and a jury came, who gave a verdict for defendant, whereupon the Court' rendered judgment against Casey the informer, for all the oosfs.. A writ of error was prosecuted to the Circuit Court,'where the judgment of the County Court was affirmed, and it is hero said that this last judgment is erroneous. The errors assigned 'bring to our examination the proceedings of the County Court insisted on as errors in the Circuit Court, and there overruled, together with the inquiry, whether it was error in the latter Court to render judgment against the plaintiff in error for costs. As .for the County Court overruling the motion to dismiss the certiorari for insufficiency appearing on the face of the petition, it has long boon the cst&blisheddoctrine in this State, that the removal of causes from before a justice of the peace to a higher tribunal by certiora-ri, is nothing more than a substitute for an appeal by which another trial is had, and that if the Judge to whom the petition is presented, deems the facts stated, sufficient, the Courts will not afterwards entertain motions to dismiss. We cannot then say that 1hero was error in overruling the motion to dismiss [55] because of the defendant’s not assigning in Ms petition good cause for not appealing from tho judgments of the magistrate. The next error which I will notice is, that as the sum claimed was but for twenty dollars, the trial should have been by tho Court, and not by the jury. It is true that the case might, and strictly speaking ought, to have been tried by the Court; but as the trial by jury is esteemed by our laws tho most unexceptionable mode of ascertaining facts, and as.a resort has been had to that method in the present case, without any objections on the part of the plaintiff, so fax as we can learn from the record, he ought not now to be allowed to urge the exception. Nor can he sustain the error assigned, that there was in fact no issue joined; for if we were to admit the necessity of a formal issue in such a case, it was for the plaintiff who now complains, to have tendered that issue. We believe also, there was no error in rendering judgment against the informer for all tho costs. Tho law permitted him to sue in the name of himself and of the Stato, and partly for his own benefit. He undertook the prosecutions at his risk and upon his own responsibility, uncontrolled by any agency which the Stato could exert, and if he sued when he could not maintain his actions, nothing is more just than that he should pay the costs of Ms own rashness. . The only remaining question is as to the regularity of bringing all tho cases into Court by one writ of certiorari, and the propriety of the Court entering judgments in the eases not tried, conformably to the decision of the one that was. This irregularity -was cured, and the Court authorised 1o proceed in the [56] manner they did, as we think, by the agreement of the parties. After stating the judgment in the case tried, the record shews substantially that there had previously been an agreement by which the right cases were to be consolidated, and that the cases untried should follow the decision of the one that was; whereupon the Court proceeded to render judgment accordingly. The cases were not in fact consolidated ; for if so, they would all have been tried as one. Then to give effect to the agreement, as the record exhibits it, unobjected to by the parties, we must suppose that all the cases were to be considered in Court for trial, but that to simplify and facilitate the proceedings, the decision of one, was to control that of the other. The judgment is affirmed. Taylor, J. not sitting.