Downs v. Reed

Barrett, J, The petition in this case was brought to the county court under sec. 8, chap. 36, of the Compiled Statutes. It shows that the suit before the justice was not defaulted, so. there could have been no denial of a hearing on the assessment of damages. It further shows that the suit was not appealable, and so the party could not have been prevented from entering an appeal. It shows, therefore a case not within the provisions of [787] the statute. . The authority of the county court in respect to such a petition is only such as is conferred hy the statute. It is not an inherent, incidental power that may he assumed and exercised independently of the statutory provision. On this ground alone the county court was justified in dismissing the petition, and, as matter of strict law, was hound to do so. But there is another view in which it would seem that the case is not the proper subject of revision in this court. The exceptions do not show that the county court dismissed the petition on account of any supposed lack of authority to entertain it. They state that “ the court, upon the facts set forth in the petition, and upon the statement above agreed on, refused to grant the appeal prayed for by the petitioners, but dismissed the same,” etc. The statute places the granting or denying of the prayer of such a petition entirely within the discretion of the county court. For aught that appears, the county court dismissed the petition in the exercise of that discretion, upon the facts set forth, irrespective of any question as to the authority of the court to entertain it. If so, then the decision of that court is not revisahle here, as is settled by all the cases and the uniform practice upon the subject. The exceptions must show, affirmatively, error in matter of law, in order to give this court the right to reverse the judgment of the county court. If, therefore, it were to be assumed that the petition presents a case within the. authority of the court, in order for this court to predicate error in the judgment dismissing the petition, it should appear in the exceptions that the decision was made upon the ground that the county court had not authority in law to entertain it. Upon either of the foregoing views of the case we should regard it our duty to affirm the judgment. Yet, as the argument embraced the consideration of the question whether the case presented called for, or would justify, the granting of the prayer of the petition, if it was before the court merely as a subject for the exercise of discretion, it may not he improper to add that we agree in the opinion that the petitioner was not deprived of his day in court, in the sense of having been deprived of a trial by the justice, by the fraud, accident or mistake of anybody, unless it may be the mistake of the party himself in not going on with [788] the trial at the time set, or asking for a continuance till Downs, should have become able to attend, or applying to the justice on the day of the court, after it was found that the suit was not appealable, to strike off the entry of judgment, and let the case stand continued till Downs should have got able to attend and testify on the trial. It is not to be assumed that the justice would have wrongfully or unjustly denied such an application if it had been properly made to him. And we think before the party should be permitted to avail himself of the dernier remedy of petition to the county court under the statute, he should show, at least, that he had been denied reasonable and just relief by the justice, upon proper application made to him in that behalf. We are unable to discover any error in the judgment of the county court, even if it be regarded merely as the exercise of judicial discretion. The judgment is affirmed.