24 Wis. 309 | Wis. | 1869
The certificate of the justice that the notice of appeal was not signed when served on him, was no part of his official return, and consequently was no evidence. A justice, by certifying as to matters which he is not required or authorized to certify to, cannot make his certificate evidence. 1 Greenl. on Ev. § 498.
If no notice of appeal was served on the justice, he should not have sent up the papers to the circuit court. Having sent them up, if the notice was sufficient on its face, then, if it was claimed by the other party that no notice was in fact served, if he desired to move to dismiss the appeal upon that ground, he should have moved upon an affidavit, so as to give the other party an opportunity to controvert it. Such a motion ought not to have been granted on the extra-official certificate of the justice, on an oral motion, when the case, after having been regularly noticed, was reached for trial.
The appeal papers are sufficient on their face. The notice of appeal is signed by the defendant “by P. Y. Wise, his agent and attorney.” The affidavit is made by John Houston, who swears that he makes it “in behalf of Matthew Houston. ” The point of the objec
Tbe court erred in dismissing tbe appeal, and tbe order must be reversed, with costs, and tbe cause remanded for further proceedings.
By the Qourt-. ■— Ordered accordingly.
