Packard v. Lawrence , 81 Mass. 483 ( 1860 )

Dewey, J.

At the third term of the pendency of this pro* cess, the defendant moved that the same be dismissed, because no written complaint, accusation and examination of the comnlainant before the magistrate before whom these proceedings took place had been returned and filed in the case, and no record thereof duly certified, returned and filed there. Upon such motion having been made, and before the trial, the complainant offered and asked leave to file proper certified copies of the proceedings before the magistrate, and to proceed to a trial of the case. It appears that the bond of the defendant taken by the magistrate was duly returned and filed at the first term; also that a formal complaint adapted to the state of the case, and upon which the trial would be had, was also duly filed at the first term and concurrently with the entry of the case on the clerk’s docket, and that in answer thereto the defendant had duly filed an affidavit of merits and defence. In this state of facts, in (he opinion of this court, the case was such as to authorize and require further proceedings. The omission to file a certified copy of the proceedings before the magistrate at the time of the entry of the case, or during the first term, did not divest the jurisdiction of the court, although it might be a sufficient reason for declining to submit the case to a hearing without such duly certified copy.

In the case of Commonwealth v. Doty, 2 Met. 18, where it was held that the defendant could not be legally convicted on an appeal from a justice of the peace, unless the justice had transmitted certified copies of the proceedings before him, yet it did not lead to a dismissal of the case for want of jurisdiction, but the opportunity for a further hearing of the case was given whenever proper certified copies should be transmitted. We think hers the exceptions must be sustained, and the case stand for trial upon filing duly authenticated copies of the proceedings before the magistrate. Exceptions sustained.