McKee v. Murphy

DicKrosoN, Judge, delivered the following opinion in each case: This action vvas founded on a writing obligatory, and commenced before a Justice of Welborn township. The process was directed to the Constable of the same township, by. whom there was a personal service in the adjoining one where the defendant resided; and on the day of trial, a judgment was entered against him by default, from which he appealed to the Circuit Court. When the case was called, the defendant moved to dismiss, on the ground that the Justice had no jurisdiction of the case, the defendant, Murphy, being a resident of a different township from, the one in which the Justice resided; which motion was sustained by the court, the case dismissed, and judgment entered against the plaintiff for the costs, as well in the Circuit Court as in the Court below, as appears by the bill of exceptions filed; and the plaintiff now brings his writ of error to reverse the judgment. Several objections are raised to the proceedings in this case. The ,first which we deem material to be noticed, questions the propriety of sustaining the motion to dismiss. The decision of the Circuit Court appears to be predicated upon the ground that they had a right to look into the proceedings of the Justice,.and if there was any irregularity, to quash them and dismiss the case. Is this position sustained by the statute? In 1814, th.e Legislature authorized an appeal from the judgment of a Justice in all cases within his jurisdiction, (except when the judgment had been entered by default or nonsuit,) and that it should be tried and determined in the Circuit Court, in its order, like other cases where the parties are considered in Court the first term. In 1831, the act was passed which extended the right of appeal to all cases, but expressly provides that it shall be tried on its merits, without regard to any irregularity or want of form in the trial or proceedings of the Justice. See Digest 373-45. To give these provisions effect, if the original process is correct, it makes no differ-cnee whether it is regularly served or not. The defendant, Murphy, by not availing himself of his defence, if he had any, before the Justice, at the proper time, admitted his jurisdiction and right to try the case. He appealed, as he was authorized to do, to a court competent to decide on the matter in controversy. If the party who was successful before the Justice, was prepared to sustain his action on a new trial upon the merits before the Circuit Court, he must be permitted to do so: the defendant can there make his defence if he has any. The second objection, that the court erred in giving judgment for costs, must also be sustained; for if they had no jurisdiction of the case, there could be no judgment for the costs. The judgment of the Circuit Court must therefore be reversed and set aside, with costs, and this case remanded for proceedings to be had not inconsistent with this opinion.