Hunter v. Cole , 49 Me. 556 ( 1860 )

The opinion of the Court was drawn up by

Rice, J.

In this case there was a regular judgment before the justice in the original action, and an appeal therefrom in due form of law by the defendant, and the action duly entered in this Court. The appeal vacated the judgment of the Court below, and the entry of the action here gave this Court jurisdiction. It was the duty of the appellant to produce a copy of the record of the Court below and file the same in this Court. This he failed to do, and when the action was reached in order for trial, the failure of the defendant to produce the record being admitted, the action was dismissed, and the judgment of the Court below affirmed, with additional costs. Perhaps a strict adherence to precise technical language would have required the entry to have been appeal dismissed instead of action dismissed; but it would require a pretty nice discrimination to perceive distinction in the practical results of the two entries. They are in substance and effect the same, and were manifestly so intended.

But it is contended that there should have been a complaint filed before the entry was made. If the appeal had not been entered, a complaint would have been necessary to bring the action before the Court, but, having been duly entered, it ’fras before and within the jurisdiction of the Court, and required no complaint for that purpose. The provision of § 9, c. 83, in relation to complaints, is evidently directory merely, and, in a case like the present, is unnecessary.

Judgment affirmed.

Tenney, C. J., Cutting, May, Goodenow and Davis, JJ., concurred.