Bennett v. Ingersoll

By the Court,

It was intended by the legislature that by the appeal, the cause should be transferred bodily from the justice to the common pleas, and a trial de novo take place between the parties upon the issues formed by the pleadings below. But after the cause is thus removed, and in possession of the court, it must surely have the power to entertain any motion, that may properly arise upon the facts, and which goes to the foundation of the action.

The objection to the affidavit was fatal to the whole proceedings. 16 Wendell, 562, and cases. See also 13 id. 46. Whether the judgment on the appeal would have been any better than the one before the justice, it is not material now to examine. The question before the justice was one of law, and might, perhaps, be regarded in the light of an issue in law there, which he should have decided for the defendant; and regarding the manner in which objections of this nature are entertained on certiorari, the fact of *114the defendant’s being compelled to plead, should not here be deemed a waiver of the point. 17 Wendell, 85. The appellate court, then, should have entertained this question, and reversed the judgment below for the error in the affidavit.

The affidavit shewing an indebtedness in $200, when the jurisdiction of the justice extended only to $50, was, perhaps, well enough, as the plaintiff claimed only the latter amount. Certainly he could not split his demands and take out four attachments ; a recovery on one would extinguish the entire demand. This point, however, does not appear in the case.

Judgments reversed.