Lazarus v. Martling

The opinion of the court was delivered by Dixon, J. A judgment having been rendered against the defendant in a small cause court, she appealed to the Bergen Common Pleas, and there her appeal was dismissed, because the transcript, sent up by the justice, failed to show that a written notice of appeal, signed by or on behalf of the appellant, had been filed with the justice, and that an appeal bond [85] had been so filed. Under a r.ule from this court the reasons for dismissal are expressly stated by the Common Pleas to be the alleged defects in the transcript, and'to test the legal sufficiency of those reasons is the object of the present writ of certiorari. . The Small Cause Court act (Pamph. L. 1903, p. 251) provides (section 81) that the justice who- grants an appeal shall send to the clerk of the Common Pleas a transcript of the proceedings and judgment in the cause, together with the appeal bond, within ten days after he shall receive notice of the appeal. In this enactment, unless the notice of appeal’is included in the phrase “transcript of the proceedings,” the statute does not require it to be sent to the Common Pleas. I think it is not so included because the entire phrase, “transcript of the proceedings and judgment,” suggests that.the proceedings intended are those prior to the judgment, a suggestion corroborated by the fact that the bond alone of the steps taken after judgment is mentioned. According to the usual practice the transcript consists of a copy of the docket which the statute'(section 112) requires the justice to keep, and such papers as are necessary for the trial of the cause on appeal (English v. Bonham, 2 Harr. 350; Henry v. Campbell, 4 Zab. 141); but no entry upon the docket respecting the appeal is prescribed except “when and by whom it was demanded, and the date of receiving notice thereof,” and the notice of appeal is certainly not a paper necessary for the trial of the cause. No- transcript as to the bond is required, the bond itself being produced. Moreover, in determining whether an appeal should be granted, the justice acts judicially (Tichenor v. Hewson, 2 Gr. 26), and when the sufficiency of the steps taken for perfecting the right of appeal has been adjudged by him the cause is transmitted to the Common Pleas, not for a review of alleged errors in the court below, but for a new trial on the merits. Vannoy v. Givens, 3 Zab. 201. No doubt the Common Pleas has power to ascertain whether an appeal has been legally taken, and to dismiss the cause, [86] if it lias not been, but this power should be exercised on an ascertainment of the real facts, not on a mere discovery of defects in the transcript. For, as to those parts of the docket which are not essential to a record of the judgment (and the proceedings for appeal are certainty not), the statute is directory only (English v. Bonham, 2 Harr. 350; Houghton v. Potter, 3 Zab. 338; 4 Id. 735), and it has long been the practice for the Common Pleas to rule the justice to certify matters which he ought to have entered on his docket, but which he has omitted. Bennet v. Kite, 4 Halst. 106. Indeed, the statute which directs what shall be so entered expressly declares that no imperfections or irregularities in the docket shall invalidate any proceedings or judgment, but the same may be corrected to conform to the fact at any time, under rule by the court to certify, or otherwise. Wo conclude that the order of dismissal was made without legal evidence to support it, and should be set aside. Let the cause be remitted to the Common Pleas for further proceedings according to law.