Goodenow v. Stafford

The opinion of the court was delivered by Bennett, J. We think there must be a new trial granted. The plaintiffs in the audita querela seek to set aside the judgment that was rendered against them in the county court, affirming the judgment of the justice upon the complaint of the appellee, and this upon the ground that the appellants had duly entered their cause in the county court, where it was then pending, and that consequently the right of the appellee to enter the cause for affirmance did not exist. But the question is, did the appellants ever enter their appeal in such a way as to take away from the appellee the right to enter for an affirmance P The statute, Comp. Laws, p. 238, §73 says, “the appellee shall produce and enter in the court to which the appeal is taken, attested copies of the original writ, process, record of judgment, and all evidence filed in the court from [440] which the appeal was allowed.” And if the party having appealed from the judgment of a justice shall neglect to enter his appeal in the county court, the statute gives the adverse party the right to enter for affirmance. In the present case the appellants handed ^o the clerk of the court the following memorandum “Stafford v. Goodenow,” and this was entered upon the clerk’s docket. No copies from the justice were ever sent up to the county court, or filed with the clerk, so as to become the foundation of any proceedings by the appellants in the county court. Until this was done the court had no jurisdiction of the action. The statute requiring copies of the justice’s record to be sent up, should be regarded as mandatory, and not simply as directory. If the copies had been filed any time during the term under the order of the court, it might doubtless, by relation, have referred back to the first day of the term. But in this case, the appellants in fact did nothing; not enough to give the county court jurisdiction of the action. In no proper sense can it be said, that the appellants had entered their appeal in the county court, and it is the same thing in effect, as if they had not attempted to do any thing. The appellee’s right to enter for an affirmance was not then taken away There was manifest error in the view taken by the county court in this particular. The other points reserved upon the trial become of no importance to be considered. The judgment of the county court is reversed and the cause remanded.