Tarwater v. Long

Biggs, J.,

delivered the opinion of the court.

It appears from tfye record that this action was begun before a justice of the peace, and that a trial was had resulting in a judgment for plaintiff for twenty dollars, the amount sued for. It further appears that the cause was again tried in the circuit court with a like result. From this latter judgment, the defendant has prosecuted this appeal.

The transcript of the justice as shown by the record sent to this court, fails to show that any appeal was granted or taken to the circuit court. This was absolutely necessary in order to confer jurisdiction on the circuit court. The statute requires, the justice to make an entry in his docket of the allowance of an appeal (section 3045). The record fails to show that an affidavit or appeal bond was filed before the justice, by which we would be justified (section. 3047), in sustaining the jurisdiction of the circuit court, although no entry was made by the justice allowing the appeal. The record also fails to show that the justice filed in the office of the circuit clerk the original papers or process, belonging or relating to said suit (section 3050), and no such papers are contained in the record sent to this court. There is absolutely nothing in the record before us to show that the circuit court acquired any jurisdiction of the cause.

We cannot indulge in any presumptions in favor of the validity or correctness of the proceedings and judgment of the circuit court. Its jurisdiction on appeal from the magistrate’s court must affirmatively appear from the transcript sent up by the justice. If the circuit court had no jurisdiction, then this court is precluded from passing on the merits of the appeal.

With the concurrence of the other judges, the appeal will be dismissed.