Brewer v. Smith , 3 Gill 299 ( 1845 )

Dorsey, J.,

delivered the opinion of this court.

By the act of 1791, chap. 68, entitled, “an act for the speedy recovery of small debts out of court, and to repeal the acts of Assembly therein mentioned,” an appeal is given from the judgment of a magistrate “to the next county court:” but such appeal, (it is provided,) shall not operate as a stay of execution or supersedeas of the judgment, unless an appeal bond were filed at the time of making the appeal. Under this act of Assembly, the appeal might be taken at any time after the rendition of the judgment, provided it be taken to the county court, next thereafter. Many persons having lost the benefit of appeal, on judgments given by magistrates but a short time before the succeeding court, the legislature, designing to remedy that evil, by the third section of the act of ISIS, ch. 166, enacted, that, thereafter, “no appeal, from (lie judgment of a justice of the peace to the county court, shall be dismissed, because the same had not been prayed to die county court, next after the rendition of such judgment, unless the court shall be satisfied, that the appellant had notice of such judgment at least ten days before the sitting of said county court.” The act of 1825, ch. 68, entitled, “an act regulating appeals from magistrates’ judgments,” has no influence upon the question now before us, which is, simply, whether an appeal will lie, from the judgment of a magistrate to the next county court, more than sixty days after the rendition of the judgment. The sole object of the act of 1825, was, as shewn by its first section, to provide a remedy, where executions on magistrates’ judgments had been levied within fourteen days after the rendition of such judgments. This is most manifest from the second section of that law, which enacts, “that nothing herein contained, shall be construed to affect, in any way, the time allowed for taking appeals from magistrates’ judgments, or the legal operation of appeal bonds, otherwise than as in the first section of this act is expressed.” The only design imputable to this act, was to provide, that where an appeal shall be taken, and an appeal bond filed within fourteen days after the judgment rendered, an execution already levied on such a judgment should be thereby superseded. The legislature having, by the act of 1818, chap. 166, prohibited the dismissal of an appeal from a ' magistrate’s judgment, on account of its not being taken to the next county court, unless it were proved, that the appellant had knowledge of the judgment, at least ten days before the county court, next thereafter, it was found, that appellants, to whom such knowledge could not be brought home, might take their appeals, in many cases, nearly twelve months after the rendi•tion of the judgments; if, indeed, under the act of 1818, there was, in such cases, any time limited for the taking of appeals. And it being deemed, or found by experience, that the fourteen days allowed, by the act of 1825, for an appeal to be taken, and an appeal bond filed, so as to operate a supersedeas of an execution levied under a magistrate’s judgment, was too short a time to remedy both the enumerated defects in those acts of Assembly, the third section of the act of 1829, chap. 236, was passed. By which it is enacted, “that from and after the passage of this act, it shall and may be lawful for any person, who may think him or herself aggrieved by the judgment of any justice of the peace, to appeal from said judgment to the county court, at any time within sixty days from the date of the same; provided, that the person so appealing shall give bond, as now required by law, with the condition, that the appellant shall prosecute his or her appeal at the county court, next succeeding the date of the appeal bond; which appeal shall have the same effect and operation as a supersedeas to any execution on such judgment, as if the appeal bond had been filed within the time now prescribed, and the judges of the county court shall receive and hear such appeal, in as full and ample a manner as if the same had been prosecuted at the county court, next after the rendition of the judgment, by the justice of the peace.’ ’ This act, of 1829, chap. 236, was designed to repeal, (except in the city of Baltimore,) the aforementioned provisions of the acts of 1818, chap. 166, and 1825, chap. 68, and to become a substitute therefor. It was not intended to repeal any portion of the right of appeal conferred by the act of 1791, chap. 68; but was an extension of that right, in permitting, on the terms prescribed, a party to appeal from the judgment of a magistrate to the second county court, after its rendition; provided the appeal was taken within sixty days from the date of the judgment. The right to prosecute an appeal, to the next county court, after the rendition of the judgment, under the act of 1791, so far from being repealed, as has been contended, by the act of 1829, its continuing existence is distinctly recognized and referred to by the act of 1829; when, in reference to an appeal under it, it declares, that “the judges of the county court shall receive and hear such appeal in as full and ample a. manner as if the same had been prosecuted at the county court, next after the rendition of the judgment, by the justice of the peace.”

The seventh section of the act of 1831, chap. 290, was a mere declaratory enactment, and gave no other construction or operation to the third section of the act of 1829, than it was entitled to without it. The county court, therefore, very properly ruled good, the appellee’s demurrer to the second plea of the appellants.

JUDGMENT AFFIRMED.