Squires v. Millett

Miller, J. — The appeal from the judgment-of the justice had the effect, under the statute (Rev., § 3932), to bring up the cause for trial on its merits in the district court, and for no other purpose. The district court could not properly affirm the judgment of the justice without a trial unless that power existed by virtue of a rule of that court as follows: “ Rule 11. In case of appeals from justices of the peace, etc., if the appellant, when the papers are left with the clerk within the time prescribed by law, does not 'pay the. entrance fee provided by law by noon of the second day of the term, the appellee may pay such fee and have the [171] same placed upon the docket and have the judgment below affirmed.” The record shows that the cause had been docketed several times in both the district and circuit courts without the docket fee having been paid, and each court made orders in the cause from term to term for about one year before the motion to affirm was made. The reason for requiring the docket fee to be paid is, that the cause may be placed on the docket and tried in its order. Here the cause was docketed without the fee having been paid for about a year. The plaintiff was in no manner prejudiced by reason of the non-payment of the fee. The cause was docketed and he was not required to pay the fee for that purpose, nor was he hindered from a trial of the cause in its order by the failure of the appellant to pay the fee. The clerk might have refused to docket the cause until the fee was paid, and then under the rule, if the appellant refused or neglected to pay it, the appellee might do so and have the judgment below affirmed. This case does not come within the spirit of the rule. And, again, when the appellant offered to pay the fee before the ruling of the court on the motion to affirm, the court should have permitted him to do so and overrule the motion. The judgment is reversed and cause remanded with leave to the appellant to pay the docket fee in the district court and have the cause docketed therein for trial. Reversed