Bryant v. Barber , 1 Bur. 145 ( 1843 )

Irvin, J.

The action was brought before a justice of the peace to recover compensation for the use of horses. Before the justice the defendant made no defense, but after judgment given for the plaintiff, took an appeal to the district .court. The justice gave judgment on the 12th of February, 1842. The district court commenced on the 13th of June, 1842, and to which court the justice made his return the 18th of June, when the counsel for the appellant moved the court to have the same entered, which was not so ordered, the clerk merely marking it filed. On the 1st day of July of the same term, the appellee, by his counsel, moved the court to have the appeal entered, which was done, and judgment in his favor given, for the sum in which the justice had given judgment, together with interest, and twelve per centum damages; to all which the appellant objected.

By' the 6th section of the 9th article, p. 333 of the statutes of Wisconsin, the justice is required to file on or before the first day of the term of the district court next after the appeal, in the office of the clerk of said court, a transcript of his docket, together with all the papers in the case in which the appeal is taken. By the 8th section the appellant shall cause an entry to be made of the appeal, on or before the second day of said term, unless otherwise ordered by said court; “ provided, that if the appellant shall fail or neglect to enter the appeal as aforesaid, the appellee may have the same entered, at any time during that or some succeeding term, and the judgment of the court below shall be entered against the appellant for the same, with interest and twelve per centum damages and the costs of both courts.” When the justice failed to make return, as the law required, the appellant might, on or before the second day of the term, have taken a rule against him to make return, upon the coming in of which he could then have proceeded in the suit; but failing as he did, until the time at which the justice made return, the right had accrued to the appellee to have and take the judgment which he obtained at that term of the court. The district court committed no error, and the judgment therein given must be affirmed with costs.