Martin v. Martin , 5 Mart. (N.S.) 107 ( 1826 )

Matthews, J.

delivered the opinion of the court. This appeal is taken from a judgment of the district court by which an appeal brought before that court, from the court of probates, was dismissed. The judge a quo refused to examine the case on its merits, as appears from the reasons adduced in support of his judgment, on account of informalities in the citation of the district court. The form of citations in appeals is prescribed by law and ought to be strictly pursued, or at least they should contain all material things ordained. According to the constitution of the state, all process must issue in its name.

West'n Dis'ct. October, 1826.

It is true that this court has decided in the case of Bludworth vs. Somperac, as reported in 3 Martin, 709, that the style of the state was not necessary to a citation in a civil suit, as it was not required in the form established by the law which directed and governed the practice of the courts under the territorial government. But according to the form laid down by that law for citations on appeals, these proceedings were required to issue in the name and style of that government. We are therefore of opinion that the court below was correct in dismissing the appeal, for the reasons given in the judgment, which are the imperfections in the citation, as not containing a proper caption, and not having been made in reference to any return day.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.

Scott for the plaintiffs, Bullard for the defendants.