Smith v. Ammen

Me. Justice Harker delivered the opinion of the court. It appears from the recitals in the bills that the onlv reason why McKnight refused to indorse a formal approval on the appeal bond and send to the County Court a transcript of the case and the papers therein was the refusal of appellant to pay him $1.10 costs. While McKnight was entitled to payment of his services as performed, he was not entitled to $1.10 before approving the appeal -bond. We are of the opinion, too, that the acceptance of the bond by him, marking it filed and expressing his satisfaction with the security, amounted to an approval of it. We have already held at this term of court, in the case of Smith v. McOandless, that the County Court erred in not granting a rule asked for in that court by appellant against McKnight, as justice, to send up to that court a transcript of the judgment rendered by him, and the papers in the case. It is contended by appellees that appellant had an adequate defense at law, if the recitals in his bill are true, and that having neglected to interpose his defense when the suit was pending before the justice of the peace, he can not resort to equity to enjoin the collection of a judgment there regularly entered against him. There is no force in the contention. By taking an appeal, the case was still pending, and the force of the injunction was to stay the proceedings until the rights of the parties should be determined in the court appealed to. It is also contended that appellant had a remedy by certiorari, and it is asserted that the Circuit Court dismissed the bill for that reason. This point is not well made. There was no ground for a certiorari and no legal petition could have been framed upon the facts. It nowhere appears that any fact or condition existed to prevent an appeal in the usual way. As a matter of fact, the appeal was taken in the usual way. The decree will, therefore, be reversed and the cause remanded, with directions to the Circuit Court to overrule the demurrer to the amended bill. Reversed and remanded.