Brown v. Ashford
Brown v. Ashford
Opinion of the Court
delivered the opinion of the court.
There is no merit in the motion in the Circuit Court to dismiss the cause, and it should have been overruled.
1. If the affidavit was defective, it should have been amended; but we fail to discover any objection to it.
2. If the summons issued by the justice of the peace was defective, that was no cause for dismissing the action in the Circuit Court; but we are unable to find any defect in the summons.
3. The failure of the transcript of the proceedings before the justices of the peace to show the formal organization of the court on the return-day of the summons, could not avail the defendant on appeal in the Circuit Court, where the case was to be tried “ anew on its merits,” and not on the formality and precision of the proceedings before'the justices. Code, sect. 1594.
The two other grounds of the motion are disproved by the record.
Judgment reversed and case remanded, to be reinstated on the docket of the Circuit Court and tried anew on its merits.
Reference
- Full Case Name
- S. M. Brown v. Nathan Ashford
- Cited By
- 1 case
- Status
- Published
- Syllabus
- 1. Um.A'WTtri, Detainer. Duplicity in complaint. Amendment. In a proceeding under chap. 19 of the Code of 1871, “ in relation to unlawful and forcible entry and unlawful detainer,” the plaintiff’s complaint is not objectionable for duplicity where it alleges that the defendant has “unlawfully turned him out of, and unlawfully withheld from him, the possession of a certain tenement,” etc.; hut if it was defective in this respect, it should have been amended in the court below. 2. Same. Dismissal in Circuit Court. Defective summons. Where a proceeding under chap. 19 of the Code of 1871 has been appealed to the Circuit Court by the defendant, it is error for the court to dismiss the case for any defect in the summons; but a summons, in such case, is not defective because it does not state that the place at which the defendant is required to appear is “the usual place of holding the Justice’s Court in the district.” 3. Same. Organization of Justice’s Court. Defect of record. Objection thereto. A defendant in a proceeding under chap. 19 of the Code of 1871, having appealed to the Circuit Court, cannot there avail of the failure of the record to show the formal organization of the court of justices on the return-day of the summons, as the case is to be tried in the Circuit Court “anew on it merits.”