Humiston v. Anderson's Administrators , 15 Ohio St. 556 ( 1846 )

Birchard, J.

• There is really but one question in this case, and that is decisive of its merits. Although more. haye been argued, with great industry, we shall notice but one, not solely for want of. time, but because,- also, their, determination either way will, not' affect the decision. "Was the appeal-dismissed rightfully ? The facts stated in the journal entry, as the ground of the dismissal, are two — ’

First: Neglect,.by the Justice, to state the form of action and nature of the claim.

Second: Neglect to send up the bill of particulars.

The first furnished no pretext-for quashing the appeal. No magistrate’s proceedings are void for a defect of this description. If it were held sufficient to avoid his judgment, on certiorari, very few justice’s judgments would be worth any thing. Superior courts have never required technicality at the hands of Justices of the Peace, and were they to attempt it, the thing would be found impracticable. Those officers are not, in general, professional men, who are familiar with legal technicalities and the subtle niceties which distinguish the different forms of common law actions : and the public welfare does not require that they should attempt to live up to nice rules, which, in their courts, would subserve no great good, and in which they are.not supposed to be well versed.

' The other ground of dismissal was as bad as the first. The statute directs magistrates to send up the bill of particulars with their transcripts. Suppose he had neglected to do so, as the Court found, (incorrectly, it seems.) ■ This fault should not have lost to the plaintiffs the right to appeal, which they had perfected. It did not appear to the Court that the plaintiffs were even in default. Had it so appeared, all that could have been done with propriety, would have been to direct them to become nonsuit.

An objection has been'urged to' our taking any notice of any matters except what transpired on the motion 'to reinstate the proceedings. To this it is sufficient to .observe, that the before us purports to be a record, and all of the Record, of the entire proceedings ■ had in- this cause, Before the Court of Comiiion.Pleas. The Supreme.; Court, únder the general'assignment’ of errors, were therefore bound • to inquire whether any .error had-occurred; Which' appeared on' the face, of the record, and they found the one we-have noticed. . • '

Judgment Affirmed! ■