Wildman v. Rider

Waite, J. The question presented, by the motion in error, is, whether, at the time When judgment was rendered by the justice, the cause was appealable to the county court. By the statute, then in force, regulating civil actions, an appeal was not allowed from the judgment of a justice of the peace, except in certain specified cases, unless the sum in demand exceeded seven dollars. Stat., tit. i., ch. 1. Since the cause was fried before the justice, another statute has been passed, allowing appeals, in all civil cases, from judgments rendered by justices of the peace. Stat. 1853, ch. 2. Still, the question must depend upon the law in force, at the time when the appeal was first taken. And, as the sum demanded does not 'exceed seven dollars, the enquiry is, whether the case can be brought within any of the exceptions to the general law regulating appeals. It is claimed, that it falls within the provisions of the ninth section of the act, upon which the suit is brought. It is there provided, that whenever an action shall be brought to recover any penalty, imposed by that act, and the defendant shall justify himself, by reason of his title to the land, and such title shall be in dispute, an appeal shall be allowed. The answer to this is, that the action is not brought to recover any one of the penalties imposed by the act, but the [176] expenses incurred by the plaintiffs, in removing the nuisance, a duty imposed upon them by the statute. Again it is said, that the design of the legislature was to allow an appeal, in all cases where the title to land is in dispute. It is true, that, in some cases, that question is made the criterion for determining the right of appeal, but it is not the test in all cases. The title may be in dispute, in an action of assumpsit for the use and occupation of land, but the statute allows no appeal on that account. It is further claimed, that an appeal was authorized by the seventy-second section of the act relating to civil actions. That applies to a case, where the title to a way, claimed by the plaintiff, shall be brought in question. Here no claim is made, by these plaintiffs, of any title in them to the highway, where the nuisance was erected. The plaintiffs have merely acted in the discharge of a duty imposed upon them, as public officers, and now sue to recover the expenses incurred in the discharge of that duty. If indeed, they have exceeded their powers, and removed a fence standing, not upon the highway, but on the defendant’s land, the statute affords them no protection, and they have no right of action against the defendant. It is finally said, that the motion, to erase the case from the docket of the superior court, was made by the party that carried the case there. But this can make no difference. It was the duty of that court to dismiss the case, whenever it discovered that it had no jurisdiction over it, and it was immaterial, by whom a knowledge of that fact was communicated. This view of the case renders unnecessary the consideration .of the questions, presented in the motion for a new trial. We are therefore of opinion, that the law did not authorize an appeal of the case, and consequently neither the county nor superior court had jurisdiction. The judgment must be reversed. [177] In this opinion, the other judges concurred, except Hinman, J., who was disqualified. Judgment reversed.