Thornily v. Pierce

Macon, C. This was an action of replevin for certain, goods and chattels claimed by plaintiffs below, Pierce and Thomas, under a sale to them by Gr. J. Thomas, and held by the defendant below, as sheriff of said county, under certain writs of attachment issued by the creditors of said Gr. J. Thomas. The action was commenced before a justice of the peace of said county, and judgment rendered therein against plaintiff in error, from which [251] lie appealed to the county court of said county, where the action was tried to a jury, and a verdict found for defendants in error for the sum of $365. A motion for a new trial was filed by defendant below, and overruled by the court, and judgment rendered upon the verdict for the whole amount found by the jury, to which defendant excepted, and comes to this court. No written pleadings, save the affidavit in replevin, were filed in the justice’s court, or the county court. By the transcript sent up from the justice’s court to the county court it appears that no claim was made by the plaintiffs below for any special damages growing out of the detention of the goods by the defendant; but the value of the property was stated to be $265. In the county court, so far as we can ascertain by anything before us in the record, no claim for special damages was made. The county judge refused to sign and seal the bill of exceptions presented by defendants’ counsel, so far as the same purported to set forth the evidence given on the. trial, but signed and sealed what purports to and is intended to, be a bill of exceptions, so far as to show the instructions given to the jury by the court. Upon the refusal of the county judge to sign the bill of exceptions, as aforesaid, defendant endeavored to avail himself of the provisions of the Code of Civil Procedure, section 195, which authorizes a party, upon the refusal of the judge to sign the bill of exceptions, to procure the affidavits of “ two or more attorneys of the court, or other persons who were present at the trial,” to make affidavit of the truth of the facts set forth in the bill of exceptions. In this endeavor defendant failed. The statute evidently requires that the “ two or more attorneys of the court ” should be those who had no participation in, or connection with, the case in which their affidavits are sought. Simon v. Weigel, 10 Iowa, 505; St. John v. Wallace, 25 Iowa, 21. In this instance the two attorneys who made these affidavits were the two who conducted the case be [252] fore the county court, and who are in this court prosecuting this writ of error. Plaintiff in error also has filed in this court the affidavit of one Bradford, who was then under-sheriff of said San Juan county. It being seen that the affidavits of the two attorneys alluded to are not sufficient, is the affidavit of one “other person” sufficient? We think not, for the reason that the statute uses the term “other persons,” which is in its plain meaning plural; and because, if two or more attorneys of the court ate required in such case, there can be no reason why at least two “ other persons ” should not be necessary. As to the first assignment, that the court erred in not dismissing the cause for the reason that the justice of the peace had no jurisdiction of the matter, we think the point is well taken. The trial-was had before the justice of the peace on the 30th day of May, and in the county court on the 13th day of June following. Before the justice of the peace, the plaintiffs recovered $265, and on the trial in the county court, about two weeks later, they recovered $365. Upon the coming in of the verdict, which was $65 beyond the jurisdiction of the justice, and upon failure of the plaintiffs to remit this excess of $65, the court should have dismissed the suit. The judgment should be reversed and a new trial granted. Per Curiam. For the reasons assigned in the foregoing opinion the judgment is reversed and the cause remanded.