Hamilton v. Jeffries

Ryland, J., delivered the opinion of the court. In the foregoing statement, the refusal of the court below to permit the appellant to perfect his appeal, by filing a sufficient affidavit and recognizance, is relied upon for the reversal of judgment below. This is an action of forcible entry and detainer. The plaintiff, before the justice of the peace, obtained judgment; the defendant prayed an appeal to the circuit court. After the case was carried to the circuit court and the transcript filed, amotion was made to dismiss the appeal for want of a sufficient affidavit and recognizance. Before this motion was decided, the appellant moved for leave to file a sufficient affidavit and recognizance. The court refused the appellant’s motion, but sustained the motion of the plaintiff and dismissed the appeal for want of affidavit and recognizance. This action of the circuit court is erroneous, and for it the judgment must be reversed. The 29th and 80th sections of the statute concerning forcible entry and detainer; Digest of 1845, obviously regard the circuit courts as having the power to make orders to have the record and proceedings before the justice perfected in relation to appeals — to have a good and sufficient affidavit and recognizance made in the cir [619] cuit court; and the 27th section declares, that no appeal shall be dismissed for any informality, insufficiency or imperfection in the affidavit or recognizance, if a sufficient affidavit or recognizance be filed within -such time as shall not delay the other party. It was once the practice for the circuit courts to dismiss appeals, where there was no affidavit or recognizance, or an insufficiency m either, or where there was a failure to give notice; but this practice has long since been abandoned. The statutes of the State require a different practice. The practice now is, to disregard any technical or even substantial objection, and to have the cause tried anew in the court to which the appeal is taken. Justice is greatly promoted-by this last course of practice, and under the influence of such practice the court below should have permitted the appellant to file his sufficient affidavit and recognizance. The court did not err in permitting the transcript to be filed, of which the plaintiff below complained. But for the refusal to permit the appellant to file a sufficient affidavit and recognizance and for dismissing the appeal, -the judgment below is reversed, and the cause remanded, the other judges concurring.