Vanliew v. State ex rel. Ackerman

Perkins, J. Complaint for surety of the peace. . The complaint was made before a justice of the peace, and sustained. A transcript was filed in the Common Pleas. Jury trial there; finding that there was cause to fear, &c.; and judgment that security be given, &c. Appeal to the Supreme Court. A motion for a new trial was made in the Common Pleas, on the ground that no affidavit had been filed against the defendant before the justice; but the motion was overruled. The motion was not a proper one to reach the defect. The motion should have been to dismiss, or in arrest of judgment. But the objection is valid upon appeal, and had we a complete transcript before us, in which no affidavit, filed pursuant to the statute in such case made and provided, (2 R. S. p. 500,) appeared, we should be compelled to reverse the case; because the record would show no ground [385] of complaint, no cause of action, to give a Court jurisdiction to act — in short, to sustain the judgment. -Buchanan and-Daily, for the appellant. C. A. Ray, for the state. But we have not evidence that such a transcript is before us. The certificate of the clerk is, that it is a transcript of so much of the proceedings as the defendant’s attorney directed him to give. An appeal will not be entertained upon a transcript thus certified, except in a case authorized by statute, and that in this case must be dismissed. ' This is not an appeal in case of a reserved question, provided for in § 155, 2 R. S. p. 381, nor is it governed by § 558, p. 159, of the same volume, as it is not a civil case. 4 Blackstone, 251, 252. Per Curiam. — The appeal is dismissed with costs.