1. The proceedings by the justice were unquestionably in violation of a statutory right of the petitioner, but *271if it be conceded that the section quoted applies to a judicial officer acting in a judicial capacity in determining the rights of a private individual, and that the refusal of the trial court to enforce its provisions can be reviewed on appeal, there is not enough in this record to enable us to do so. There is no bill of exceptions or testimony in the record, and the only question it presents is whether, under the findings of the court below, the petitioner is entitled to the relief he asks at the hands of this court. The amount of damages sustained by him is conclusively fixed by the judgment, and cannot be inquired into here.
2. Upon the other question, the finding is to the effect that defendant’s refusal to allow the appeal and stay of execution was without excuse, which finding, in view of the action of the trial court in refusing to impose a fine as provided in the section referred to, must necessarily be understood as meaning that he thus acted without authority of law, but not in bad faith; and we must therefore assume that this conduct was either from ignorance of the law or timidity, and not from a desire to favor one party to the litigation, or to harass the other, or from a wilful or intentional disregard of duty. So that, although the defendant’s conduct apparently merits the severest condemnation, there is nothing in the record which would justify us in imposing a fine upon the defendant, even if it be conceded that under proper circumstances we would have a right to do so.
3. But, having espoused the cause of one of the parties by vigorously contesting this case, and putting every possible legal obstacle in the way of an appeal from the judgment rendered by him, even to the extent of appeal from the judgment of the circuit court directing the performance of a plain duty enjoined by. statute, he should be mulcted with the costs and expenses not only of this appeal, but of the court below. The judgment will there*272fore be affirmed, but the costs will be taxed against the defendants. Affirmed.
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