Haner v. Town of Polk

By the Oovmt, Cole, J. Tbe record in this case is very meagre, and as it now stands, presents tbe following state of facts. This action was commenced by the appellant before a justice of tbe peace against tbe town of Polk, to recover damages which be had sustained on account of bis team, (a yoke of oxen), falling through a defective bridge over Cedar creek, on tbe highway in that town ; in consequence of which fall, one of the oxen was injured to such an extent that he died. The cause was tried by a jury, on the 25th of November, 1856, and a verdict given for the appellant for forty-four dollars damages, upon which verdict the justice rendered a judgment for that amount and costs of suit. The supervisors of the town took an appeal from this judgment to the circuit court of Washington county. At a special term of the circuit court of Washington county held at Horicon in June, 1857, the counsel for Haner filed a motion to dismiss the appeal for several reasons set forth in the motion. What action — if any — was had upon this motion we are unable to determine from the record. There is nothing to show that the motion was ever called up or decided. The counsel for the supervisors gave notice of trial at the Oct. term of the circuit court, and on the 15th of October, the fol [353] lowing order or judgment was entered in the cause. After entitling the cause, &c.: “ This cause having been called on in its order on the calen- “ dar, and no one appearing for the said appellee, and it further “ appearing that due notice of trial has been served on the “ said appellee, and on motion of Thorp & Shelly, attorneys “ for the said appellant, ordered that this action be and the “ same is hereby dismissed, with costs; and that the judgment “ heretofore rendered in this action by Walter Denmore, Esq., “ a justice of the peace in and for said county, against the said “ appellant, and in favor of the said appellee, be, and the same “ is hereby vacated, annulled, and quashed.” And it is from this order or judgment that an appeal is taken to this court. We suppose the legal effect and operation of dismissing the appeal was to restore the judgment rendered by the justice. And we think it was irregular and improper, lor the circuit court after having lost jurisdiction of the cause by dismissing it, to go on and vacate and set aside the justice’s judgment. Section 267 of the code provides, that the appeal may be brought to a hearing at a regular term of the appellate court, upon a notice by either party of not less than eight days. The second clause of this section further provides, that the cause shall be placed on the calendar and continue thereon without further notice until finally disposed of; but if neither party bring it to a hearing before the end of the' second term, the court should dismiss the appeal, unless it continue the same by special order for cause shown. The appellant in this case being the defendant, below could not go on and have an exparte trial, there being no evidence sent up by the justice. He could only act on the defensive. Perhaps, if the justice had made return of all the evidence, the circuit court might have reversed the judgment, (the respondent failing to appear), for errors of law or fact as would seem to be contemplated by the 269 sec* tion. However this may be we think the circuit court could not reverse the judgment after having dismissed the appeal. If the respondent should fail to appear within a reasonable [354] time to try a cause situated as this was in the circuit court, the court might enter an order of discontinuance in the case. When this case was argued in this court by the counsel for the town, (no argument being made on the other side), we were informed that the only question presented for our consideration in the case was, whether the supervisors of the town had the right, under the statute of this state, to take the appeal from the justice’s judgment, or whether the supervisors could only do so after being authorized and instructed to take the appeal by the qualified electors of the town at a legal town meeting held in accordance with section 2, chap. 12, E. S. We stated to counsel that we did not deem it necessary that express authority from the electors should be given the supervisors to enable them to defend the suit, or take the appeal, and we remain still of that opinion. But on looking into the record we discovered the difficulty to which we have already referred and therefore feel constrained to reverse the order appealed from on that ground alone. The order or judgment of the circuit court is reversed and the cause remanded for further proceedings.