Klein v. Shields

Opinion by

White, P. J.

§ 207. Motion to set aside judgment and reinstate cause; ground of, held sufficient; case stated. Appellee having recovered a judgment in justice’s court against appellant, the latter appealed to the county court. On motion of appellee the appeal was dismissed because the justice of the peace from whose judgment the appeal was taken had not sent up to the county court a transcript of the proceedings in said suit had in his court, as required by statute. [R. S. arts. 1640, 1641.] Said justice had sent up the original papers in the suit, and they were on file in the county court, but no transcript appeared among said papers. • The motion to dismiss was sustained. Thereupon appellant made a motion to set aside said judgment dismissing the appeal, and to reinstate said cause upon the docket for trial upon its merits. One of the grounds of this motion was that a proper transcript from the justice’s docket had in fact been duly filed in the cause. This ground of the motion was supported by the affidavit of said justice, who deposed positively that he “ made out a transcript of all papers, and entries on his docket as required by law, and filed the transcript and papers in the county court as required by law.” This affidavit was not' controverted. The motion of appellant was overruled. Held error. Upon the showing made, the judgment of dismissal should have been set aside, and the cause reinstated for trial upon its merits.

December 8, 1886.

Reversed and remanded