Inhabitants of Waterville v. Howard , 30 Me. 103 ( 1849 )

Wells, J.

— Tlie question presented in the present case: is, whether the defendant could be allowed to appeal from the decision of the justice of the peace, upon a judgment of respondeat ouster. Chap. 116, >§> 9, R. S., allows to any party aggrieved by the judgment of the justice, an appeal to the District Court, “ and the case shall be entered, tried and determined in the District Court, in like manner as if it had been commenced there.”

If an appeal should be allowed from the judgment of respondeat ouster, it would be in the power of the defendant, in all cases to withdraw from the justice a trial of the merits of the action. For upon the decision, that the plea is insufficient, such judgment must always be rendered, and then upon an appeal and a like judgment in the District Court, the case would be open upon the merits in that court.

We do not think the Legislature intended to allow suci a course of proceeding.

And by requiring the defendant to answer further before the justice, he is not deprived of any of his rights. After a final decision is had of the cause before the justice, the appeal will remove the whole case to the District Court, and the same questions may there be raised, as had been before him, and according to the statute, the case may be tried in the same manner as if it had been commenced in that court.

An appeal can be taken in all cases where the judgment of the justice is a final decision of the action, and not merely interlocutory. In the present case, if the judgment had been that the action should abate, no doubt the plaintiff1 might have appealed, because that would have been a final determination of the action.

The objection, to the trial of the cause in the District Court, is interposed by the defendant, who is the appealing party, but a proceeding nol in conformity to law, cannot be allowed, although occasioned by the party objecting to it. Courts are bound to rectify irregularities of practice, whenever they come to their knowledge.

Parties may waive objections, which they are at liberty to make, and cannot afterwards recall the waiver.

But the granting of an appeal is an act of the court, and if unauthorized by law, is altogether invalid. The error is not cured, because it was committed through the advice or solicitation of the defendant. Exceptions overruled.