Kearney v. Andrews

By the Court, Cole, J. This suit was commenced by Andrews vs. Kearney, before William S. Rice, a justice of tbe peace for tbe city and county of Racine. Tbe justice, upon the trial, rendered a judgment in favor of Andrews for $100 damages, and $6.15 costs of suit. Within the time required by the statute, the attorney of Kearney made and filed an affidavit and recognizance for an appeal. The appeal was allowed, and the papers in tbe cause transmitted to the Circuit Court. On the 4th of May, 1855, Andrews filed bis motion in the Circuit Court to dismiss tbe appeal for the following reasons: 1. Because the affidavit is not entitled, and is otherwise insufficient. 2. The bond is not in pursuance of the statute. 3. No appeal was taken in pursuance of the statute. The motion was granted, and the appeal dismissed. To reverse that judgment the cause has been brought to this court by writ of error. The objection taken to the affidavit for appeal is, that it is not properly entitled in the cause,. and in the court in which the suit was pending. In the body of the affidavit the parties to the suit are correctly described, and we deem that entirely sufficient. Ex parte Metzer, 5 Cow. R. 287. ( Tbe affidavit is not entitled in tbe justice’s court, although the jurat shows that it was made before the magistrate who tried the cause, and it was transmitted to the Circuit Court with the other papers in the case. Tbe affidavit is likewise, substantially in tbe language of tbe statute, “ that an appeal is taken in said cause in good faith, and not for the purpose of delay.” The [25] question arises, is tbe omission to entitle tbe affidavit in tbe justice’s court a fatal objection to it ? All are aware, that affidavits for appeals are not generally drawn by professional men, and we do not desire to insist upon a" strictness and technicality .in respect to them, not consistent with tbe letter and spirit of tbe statute, and tbe substantial administration of justice. Tbe object of the legislature, in requiring the affidavit, was to prevent, so far as an appeal to men’s consciences would do so, vexatious litigation and tbe multiplication of appeals for tbe mere purpose of delay. Hence tbe party must swear that bis appeal is made in good faith, and not for tbe purpose of delay. Subdv. 1, § 228, chap'. 88, R. 8. Tbe general rule in regard to tbe entitling of affidavits undoubtedly is, that they should be regularly entitled in tbe court in which they are made or intended to be used. 2 Archb. Pr. 899; 3 Ghitt. Pr. 538; 2 Burrl. Pr. 342. And tbe reason generally assigned for tbe rule is, that tbe affidavit must be correctly entitled, so that an indictment for perjury will lie upon it if false. ' Tbe test for tbe sufficiency of tbe affidavit is said to be, whether tbe party making it could be indicted for perjury, if tbe matter stated therein were false. Quarles vs. Robinson, 1 Chand. R. 29, note; Haight vs. Turner, 2 J. R. 370; The matter of Bronson et al., 12 id. 460, note ; Humphreys vs. Concle et al., 2 Cow. 509. Now, I am of tbe opinion that perjury migbt.be assigned upon this affidavit if it were possible to show that tbe appeal was not taken in good faith; but for tbe purpose of delay. It seems to me, that by proper averments in tbe indictment, it might be shown that tbe affidavit was made in a cause-in tbe justice’s court. It has been held that an affidavit, not itself entitled, but following or indorsed upon papers which are properly entitled, is good by relation to the principal papers. 4 Hill, 597. It appears to me that this case is clearly distinguishable from tbe cases where tbe affidavit is wrongly entitled, in a suit or court, or parties, or where it is entitled in a cause not at .the time pending in court. In these latter cases there must, of necessity, be a variance between a proper averment in tbe indictment, and the evidence offered to sustain it. In the case of Yard vs. Bodine (3 Harr. R., [26] N. J., 490), it was Reid by C. J. Hornblower, in an able opinion, that if it appeared by tbe transcript of tbe justice that an affidavit bad been filed for an appeal in words or in substance as required by tbe statute, it was sufficient, although tbe affidavit was not entitled in tbe cause, and it did not appear upon tbe face of it in what action it was made. He thought perjury might be assigned upon such an affidavit, if untrue. But that is pushing tbe doctrine to a much greater extent than it is necessary to do in order to sustain this affidavit. The King vs. Eniden, 9 East, 445. Tbe objection to tbe recognizance is, that it is not in a sum double the amount of tbe damages recovered and costs of suit, and therefore is not in compliance with tbe statute. In tbe case of Ganet vs. Mears (4 Wis. Rep. 306), decided at tbe last term, we bad occasion to put a construction upon subdivision 2, of section 228, of chapter 88, of the' Revised Statues, and we were of tbe opinion that tbe recognizance need not be in double tbe amount of debt or damages and costs of suit. Tbe term judgment, as there used, does not necessarily -include costs; and- -if tbe recognizance is not less than $50, and double tbe amount of the judgment rendered, exclusive of costs, it is sufficient. Tbe language of this section might perhaps warrant a different construction ; but looking at other provisions of tbe statute, and tbe use of tbe word “judgment ” therein, we were led to tbe conclusion that costs were not to be considered a part of tbe judgment. Tbe recognizance must be in a sum of $50 at least, even though tbe damages and costs in tbe court below are less than $25. It will be observed that where a cause is taken up by certiorari, tbe statute requires tbe recognizance to be • double tbe amount of tbe judgment and costs recovered before tbe justice, a change in tbe language of tbe statute difficult to be accounted for, unless our construction of tbe section under consideration be adopted. We are of tbe opinion that tbe Circuit Court erred in dismissing tbe appeal. Judgment reversed and cause remanded for further proceedings.