Carden v. Bailey

Wood, J., (after stating the facts). The filing of the affidavit and bond for appeal by the appellees was such a substantial act as to constitute an appearance to the proceedings, and gave the circuit court jurisdiction of the persons of appellees on appeal. See Holloway v. Holloway, 85 Ark. 431; St Louis, I. M. & S. Ry. Co. v. State, 68 Ark. 561; Silver v. Luck, 42 Ark. 268. The perfecting of the appeal from the justice of the peace gave the circuit court jurisdiction of the cause. Harrison v. Trader, 29 Ark. 85, 97. In the circuit court on appeal from the justice’s court, the cause is tried de novo, on its merits. The appellees could not object in the circuit court, on appeal from the justice’s court, to the want of service of summons in the latter court. Kansas City, S. & M. Rd. v. Summers, 45 Ark. 295; Hopkins v. Harper, 46 Ark. 251. It was the duty of the justice of the peace, bn or before the first day of the next term of the circuit court after the appeal had been allowed by him, to file in the office of the circuit clerk a transcript of his docket entries and the process and papers in the suit. Section 4670, Kirby’s Dig. It was the duty of appellees here to see that the transcript was lodged with the circuit clerk as the law requires, and upon failure to do so it was in the discretion of the circuit court to dismiss the appeal or affirm the cause for the failure to prosecute. Wilson v. Stark, 48 Ark. 73; Smith v. Allen, 31 Ark. 268; McGehee v. Carroll, 31 Ark. 550; Hughes v. Wheat, 32 Ark. 292. It was to call forth this discretion of the court that appellant filed the transcript from the justice docket, and moved for an affirmance of judgment of the justice. He. was entitled to the relief asked. Wilson v. Stark, supra. The court erred in rendering judgment for the appellees. The judgment is therefore reversed, and judgment is rendered here in favor of appellant against appellee for the amount of the judgment of the justice of the peace, with interest thereon from the day of its rendition.