Lynah v. Heyward

The opinion of the Court was delivered by

Mr. Justice Gary.

This was an action before a magistrate for - damages for impounding cattle. His Honor, Judge Klugh, signed the following order: “The magistrate refused to send up> the case on appeal to the Circuit Court, and the following order was obtained: It appearing that due service of the notice of appeal was served on plaintiff’s attorney, and notice of appeal served on W. N. Barnes, the magistrate, who tried the case, by mail; and it further appearing that the magistrate has acknowledged the receipt of said notice, and that plaintiff’s attorney, under an agreement -made previous to trial, makes.no objection to the sufficiency of the notice of appeal on the magistrate, or to' the hearing of the appeal, and the magistrate refusing to- make the return and file the appeal papers' herein, ordered, that W. N. Barnes, magistrate for said county and State, do within a reasonable time from the service of a copy of this order on him, to wit: at least eight days before the next regular term of this Court, file in’the office of the clerk of this Court the appeal papers required by law, in order that the said appeal be heard; and it is further ordered, that the clerk of this Court do1 forthwith furnish a copy of this order to the sheriff of said county and State, and that the sheriff serve same on said magistrate within ten days time from the delivery to him of such copy.” The following was sent up by the magistrate with the papers: “Return of the magistrate to> send up the appeal: The order of the Circuit Judge directing that the papers in the above entitled case be sent to' the clerk of the Circuit Court is complied with, the papers being hereto attached. The judgment of the Court below is that the right of the appellant to> have his case reviewed by the appellate 'Court was lost by non-compliance with section 360 of the Code of Civil Procedure, which prescribes that the notice of appeal must be within the same time served on the trial justice personally, if living in the county, or on his clerk, if there be one, by leaving it at his residence with some person of suitable age and discretion. This was not done, the service was -made on the justice 'by mail, a mode not provided iby law. The agreements of counsel affect themselves only, they cannot waive for a court of law the requirements of statute that effectuate an appeal by consent of counsel; both cases when tried as one amount claimed $47.50. Jury found for plaintiff $35.00 and cost of Court. Papers marked exhibits A and B were put in as evidence at trial. W. N. Barnes, (L. S.) Magistrate.”

The case on appeal to- the Circuit Court was heard by Judge D. A. Townsend, who made the following order: “Upon the call of this case for hearing, the appellant moved to send the record back to the magistrate for the purpose of making it complete by including the magistrate’s report. This motion was opposed by the respondent. It appears that at the last term of the Court an order in this case had been made requiring the magistrate to send up the record; the motion was refused, and the case heard upon the record as sent up, there not being any report of the magistrate upon the case. The exceptions'of the appellant were duly considered and overruled, after hearing read the testimony and considering same, and hearing Messrs. Elliott & Elliott for the appellant, in place, by request, of Mr. Tillinghast, and Mr. Verdier for the respondent, ordered, that the appeal herein be and the same is hereby overruled, and the judgment of the magistrate’s court confirmed.”

The appellant’s first exception is as follows: “1. Because his Honor, the presiding Judge, erred in not sending the case to- the magistrate who tried it, for the purpose of having the report of the magistrate attached, it being impossible to hear the case with justice to- the defendant, without having the magistrate report upon requests to charge by defendant. The presiding Judge should have required the magistrate to-have obeyed the previous order of the Court.” Sections 362 and 364 of the Code are as follows: 362. “The Court below shall thereupon, after ten days and within thirty days after service of the notice of appeal, make a return to the Appellate 'Court of the testimony, proceedings and judgment, and file the same in the Appellate Court. The return may be compelled 'by attachment. 364. If the return be defective, the Appellate Court may direct a further or amended return as often as may be necessary, and' may compel a compliance with its order by attachment. And the Court shall always be deemed open for these purposes.” The record does not show that the magistrate failed to make a return as to any proceedings in the case. But, apart from this fact, after the magistrate made a return, which was done in this case, it was discretionary with the Circuit Judge, whether he would order a further or amended return. His Honor, Judge Klugh, did not order the magistrate to> make a report, as seems to be contended, but to file “the appeal papers, required by law.” The exception raising this question is overruled.

The appellant’s attorney, in 'his argument, admits that it will be impossible to argue the other exceptions without a further or amended return.

It is the judgment of this Court, that the order of the Circuit Court be affirmed.