McGrew v. Adams , 2 Stew. 502 ( 1830 )

By JUDGE TAYLOR.

The first error assigned pu this case, is, that “ the Court below erred in proceeding W trial and judgment, before the judgment rendered by the justice of the peace had been brought up by the certiorari.”

It appears to be a case brought from ajustiee of the peace into the County Court, by certiorari. The petition states that a judgment had been rendered against McGrew, the petitioner, in favor of Elliott, by the justice, and for reasons which were deemed sufficient by the Judge of the County Court, he prayed and obtained a writ of certiorari directing the justice to return a complete record of the proceedings before him to the County Court. In conformity with this order, he made a return of the warrant and execution, together with a statement of the time at which judg-' ment was rendered by him, and the sum for which it was rendered. This statement, it is true, does not purport to contain a copy of the judgment, as entered by him on his docket or elsewhere, but it does not require a strained construction to infer that it is such; on the contrary, its precision with respect to dates, sums, &c. forces that conclusion upon the mind. But even if it were not, the petition and bond admit such a judgment, and the defendant, McGrew, who sued out the certiorari, waived every irregularity in the return by going to trial on the papers which Were before the Court; and certainly Elliott cannot now be prejudiced by his wrong.

The next assignment which I shall notice, though not the next in the order they are made, is, that “ the amonnt in controversy was not within the cognizance of a jury, and should have been exclusively tried by the Court.” I am far from admitting, if this assignment were supported by the record, that it would be error. After a party has formed an issue to the country, it would be perverting instead of promoting justice, to permit him to reverse a cause on this ground; and it may often happen that a party claims more than $>20, and the jury would be of opinion that less than that sum was due. But in this case, the verdict is for upwards of $22, and although at the time the warrant was issued, the plaintiff’s demand may have been for a less sum than $20, and interest subsequently accruing- may have swelled it above that sum; yet, in my opinion, a jury trial in such case, is the proper one. •

The 4th assignment is, that “ the plaintiff sued but one defendant in the Court below, and declared against two in the Court above.”

It appears that the warrant was issued against McGrew alone; that Adams became his security in the bond which he gave when he sued out the writ of certiorari,' and the Statement or declaration was filed against both. Although this was irregular, yet it is not considered as a ground on which the cause can now be reversed. Appeal cases will never be scrutinized so closely as causes in which a larger amount is in controversy, and which are commenced in a Court of record. And in this case no injury can be inflicted upon Adams by this step. He was liable to Elliott, if a recovery were had against McGrew, his principal, and the judgment against him would have followed as a matter of course; and this irregularity would have been cured Jby an amendment, if an objection had been made to it be-J low, particularly as the issue is presumed to have been ,» made up under the direction of the Court. The defendant i cannot be permitted in such a case to lie by, take no advantage of such a defect in the Court below, and come into this Court to reverse the judgment.

The rest of the assignments relate to the want of a proper issue, and other defects in the pleadings.

The statement or declaration, it is conceded, does not embrace a sufficient ground of action; but from the agreement filed by the parties, it appears that they entered into an arrangement that the pleadings should be filed after the trial. It does not certainly appear whether the statement contained in the record, and the issue thereon, were made after or before this agreement; but even conceding that it was after, yet I understand this agreement as amounting in fact to a waiver of all strictness in pleading, and consider it tantamount to an understanding that the parties shall try without any pleadings; and that the agreement shall stand on the record in their stead; and this is certainly the1 more correct decision, when it is remembered that the statute requires the issue to be made up under the direction of the Court, who, the law presumes, would have it correctly done. And when the parties thus agree to do that between themselves, which otherwise it would be the duty of the Court to superintend, it would be highly unjust to permit such an omission as is now insisted on as a cause of reversal, to prejudice either party.

Tire judgment must be affirmed; and of this opinion is the whole Court.