Ladow v. Groom , 1 Denio 429 ( 1845 )

By the Court, Beardsley, J.

The declaration proceeds upon the assumption that the execution was illegal, having been issued after an appeal from the judgment had been duly taken to the court of common pleas. One party urges that the appeal was legally made, which is denied "by the other; and this is the only point to be decided.

When an appeal has been duly made, all proceedings on the judgment before the justice are to be suspended, and nothing can lawfully be done thereupon until said appeal shall be dismissed or discontinued. (2 R. S. p. 259. § 192, p. 262, § 208.) This appeal had not been dismissed or discontinued; and if it was legally made, the execution was unauthorized and affords no protection to the justice or the party.

A person who would appeal from a justice’s judgment must make an affidavit upon which an allowance of such appeal is to be endorsed. These are to be served on the justice, and “ no appeal shall be valid or have any effect unless,” among other things, “ the party intinding to appeal shall serve the affidavit and allowance of appeal” on the justice. (2 R. S. 258, 187 to 191.)

A paper purporting to be such affidavit was served, but, I think it cannot be regarded, as an affidavit. It does not appear to have been sworn to. It has a jurat, but it is not subscribed by any one, and no proof was given on the trial that the affidavit had in fact been made by the appellant. This paper was not an affidavit: it lacked vitality. It was indispensable that it should appear to have been duly made and taken before a competent officer. (2 R. S. 284, § 49.)

The allowance of the appeal was well enough in form; but that could not dispense with the necessity of an affidavit. Both were necessary to make the appeal valid, or to give to it “ any effect” whatever. Nothing which was done by the commissioner who allowed the appeal, or by the justice, could make the appeal legal without complying substantially with the requirements of the statute.

As the appeal was inoperative on the ground stated, there was nothing to prevent the issuing of an execution on the judgment; and the execution was a complete justification to the defendants. No cause of action was therefore shown on the trial; and the common pleas erred in refusing the motion for a nonsuit, and in instructing the jury that the plaintiff was entitled to recover.

Judgment reversed.