HILL V. STEEL. VOL. l'T *HILL 1*440 V. STEEL. Where a judgment, rendered by a justice of the peace, is brought into the circuit court by appeal, and that court adjudges that the appellant had lost his right of appeal by his own laches —as by permitting a judgment to be rendered against him by default, and failing to appeal within fifteen days —and dismisses the case, there is no mode provided by our law, by which the appellant can obtain a trial de novo. When a case, commenced before a justice of the peace, is brought into the circuit court upon certiorari, the court can only determine, upon inspection of the proceedings and judgment of the magistrate, whether they were valid, or irregular and void, and quash or affirm. A judgment would hardly be void, though the suit be commenced and prosecuted on a writing obligatory, executed to the wife in her lifetime, whether the suit be properly brought in the name of the husband or not—or whether he should have sued as the representative of his wife—such objection should be made, if good, before the justice ; and not in the circuit court, upon certiorari. Appeal from Johnson Circuit Court, ON. JOHN. J. CLENDENIN, Cir-H cuit Judge, presiding. May, for the appellant. Cummins, waltz&
JAN. TERM, 1856. HILL V. STEEL. ENGLISH, C. J. Thomas Steel sued the court could only determine upon Mark Hill, before a justice of the peace inspection of the proceedings and judg-of Johnson county, on a writing oblig-ment of the magistrate, whether they atory, for less than $100 executed by were valid, or irregular and void, and Hill to Elizabeth Steel. quash or affirm. The summons issued by the justice, The justice of the peace, it affirma-required the defendant to appear, &c., tively appears, had jurisdiction of the "to answer the complaint of Thomas subject matter of the suit, it being a Steel, the surviving husband of Eliza-bond for the payment of a less sum of beth Steel," &c. money than $100, and also of the per-The defendant being served with son of Hill by due service of process. process, the transcript of the On certiorari, see Levy v. Lyschinski, proceedings before the justice 8-116, note I. shows, that on the day of trial, It is stated in the petition for the 441*] *15th July, 1854, the plaintiffap-certiorari, that Hill executed the bond peered by attorney, and the defendant sued on, to Mrs. Steel, after her mar-appeared in person, but made no de-riage with Steel, for money borrowed fense: and the judgment was rendered by him of her, before the marriage, in favor of the plaintiff, for the amount and that the suit was brought by her due on the bond sued on. That, on the husband after her death. first day of August, following, the de-It is insisted that the husband fendant appealed to the circuit court had no right of action upon the of Johnson county. *bond, unless he had taken out [*442 The circuit court ordered the case letters of administration upon his stricken from the docket, for want of wife's estate, and brought the suit as jurisdiction, on the ground, that the her administrator. judgment of the justice was rendered Whether this be the law or not, we against defendant on default, and that need not decide. The proposition is he made no motion to set it aside based upon statements dehors the tran-within the fifteen days thereafter, as script of the proceedings and judgment required by the statute. See Digest, of the justice. This was a matter which chap. 95, part 2, sec. 175. should have been interposed as a de-Afterwards, upon the petition of the fense before the magistrate upon the. defendant, Hill, a transcript of the pro-trial. ceedings in the cause before the justice If the legal title to the bond did not of the peaee, was brought into the cir-vest in the husband upon its execution cuit court by certiorari, and on inspec-to the wife, and if he had not the r■ght tion thereof by the court, the judgment to sue thereon, while she was living, or of the justice was affirmed, and Hill after her death, in his own name, the appealed to this court. judgment would hardly be absolutely When the case was in the circuit void, because he brought the action in court on appeal, the court having ad-his personal right, and not as her judged that Hill had lost his right of representative. See 1 Chit. Pl. 31, appeal by his own laches, and having 32.' dismissed the case, the judgment of We think the court below did not the justice became final and absolute; err in affirming the judgment of the and there was no mode provided by justice, on inspection of the transcript.. our laws, by which Hill could after-See Boothe v. Estes, 16 Ark. 104. Affirmed. wards obtain a trial de novo. Absent, Mr. Justice Scott. When the cause was brought into Cited:-24-124; 30-20; 33-488; 35-99; 39-402. the circuit court again upon certiorari, 1. See Gates v. Bennett, 33475, and ewes cited-
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.