Trice v. Jones

Campbell J., delivered the opinion of the court. Trice sued Jones in replevin for a mule, before a justice of the peace, and on trial Jones obtained judgment against Trice' for $25 damages, from which Trice appealed to the. circuit court. This appeal was dismissed, on motion of Jones, for want of such an affidavit as the statute requires, and Trice prosecuted a writ of error to the judgment dismissing his appeal. An inspection of the affidavit made by Trice for his appeal shows nothing unusual in it except that instead of the stereotyped formula, “ Sworn to and subscribed before me,” [139] tbe justice certified the making of the affidavit by these words,., viz., “ Given under my hand and seal,” etc. To sustain such an objection would justly bring judicial proceedings into contempt, and we cannot suppose that it was-on this ground that the motion to dismiss the appeal was sustained. The affidavit conforms to the statute, and we fail to' discover why it was held insufficient, and, if insufficient, why it - was not permitted to be amended. The judgment dismissing said appeal will be reversed, and. ,the case remanded to be tried in the circuit' court as though, no dismissal of the appeal'had occurred.