Bixler v. Taylor

Smith, J. This is a proceeding by certiorari to quash the judgment of a justice of the peace upon the. ground that it was rendered without service having been previously had. Upon the trial in the court below there was evidence which tended to support the .allegations of the petition for the writ, and there was likewise evidence to the effect that the defendant appeared by an attorney-in-fact at the justice trial and defended the suit there. There is also evidence to the effect that this attorney-in-fact had no authority to so appear. It is undisputed, however, that after the rendition of the judgment by the justice of the peace an affidavit in proper form was prepared 'and filed within the time limited by law for an appeal to the circuit court, but the justice did not file the transcript required by law for the reason, as stated by the justice of the peace, that no bond for appeal was made nor were the costs paid. This appeal was abandoned by appellant, who was the defendant below, and he now seeks by this proceeding to vacate the judgment against him. Appellant had the right to prosecute an appeal from the judgment of the justice court, although he was not required to do so, if the allegations of his petition for the writ of certiorari are true. But when he elected to appeal and took the necessary action for that purpose, under the statute, he thereby became a party to that proceeding and the affidavit and prayer for an appeal, which he filed with the justice of the peace, was an entry of his appearance, 'and he should thereafter have prosecuted this appeal. 'Section 4666 of Kirby’s Digest provides how any person aggrieved by any judgment rendered by a justice of the peace may take an appeal therefrom to the circuit court, and appellant, by his attorney, complied with the first two subdivisions of this section and, having done so, his right of appeal was perfected. It is true the third subdivision of section 4666 provides for the giving of a bond, upon the approval of which a supersedeas issues; but the appeal may be prosecuted without giving this bond, and the justice had no right to require the execution of this bond as a condition precedent to the filing of proper transcript with the clerk of the circuit court. When he made and filed, within the time limited by law, the necessary affidavit, appellant had done the jurisdictional things essential to an appeal and, if necessary, could have had a rule upon the justice to require the filing of a transcript, upon payment of the costs allowed by law. Having thus elected to appeal, he can not now be permitted to adopt this remedy as a substitute for the appeal he should have prosecuted. The judgment of the court below denying the prayer that the judgment be quashed will be affirmed.