39 Ind. 369 | Ind. | 1872
This action was commenced by the appellees against the appellant and one Ingersoll, before a justice of the peace, on a promissory note, made payable to Cheney and Nichols. There does not- appear in the transcript of the justice of the peace any complaint other than the note itself. There is no indorsement of it to the plaintiffs shown. The cause was tried by jury, before the justice of the peace, and the jury returned a verdict, finding for the plaintiffs, but not assessing any damaged, or ascertaining the amount due on the note. The defendant Rachel Britton appealed to the circuit court, the other defendant having pleaded, infancy, and no further notice of him appears to have been taken.
In the circuit court, Mrs. Britton moved the court to set aside the judgment of the justice of the peace, and to order the judgment rendered by the justice to be by him stricken -out and set aside, and for judgment for costs. This motion was overruled. We think this motion was properly overruled. The appeal from the judgment of the justice of. the peace had the effect to vacate the judgment, and brought the case into the circuit cour-t for re-trial, as if it had not been before tried. The circuit court does not act as a court of errors to review and correct the action of the justice of the peace in questions of law merely. In the circuit court there was a trial by jury, verdict for plaintiff] motion for a new trial overruled, and judgment for the plaintiff! It is alleged as error, that the circuit court improperly refused to grant a new trial on the motion of the defendant.
We are of the opinion that this proceeding cannot be sustained. It cannot be allowed that the judge of a court can thus orally designate an attorney to hold the court in his absence for any purpose, and that such attorney can then perform any of the duties of the judge of such court. It is provided by statute that in certain specified cases the judge of a circuit court may appoint a competent person to hold his court, but the fact that the judge is "weary” does not ' authorize him to appoint some one else to take his place. 2 G. & H. 9, 10. There was no court at the time when the verdict was returned and the jury discharged. The fact that counsel for the defendant was present, or was not present, can make no difference. ’ We are not at all disposed to encourage any such' loose practice.
We cannot examine the other reason for a new trial, which is the insufficiency of the evidence, because the evidence is not all in the record.
The judgment is reversed, with costs, and the cause remanded, with instructions to grant a new trial, and for further proceedings.