25 Minn. 41 | Minn. | 1878
No action can be instituted in a justice’s court except by the usual process or the voluntary appearance and agreement of the parties. Gen. St. c. 65, § 8. In all cases not otherwise provided for, the first or usual process is a summons issued by the justice, the requisites of which are specifically prescribed by statute. Gen. St. c. 65, §§ 10, 11. Among the essential things which the summons must contain, is a statement of the time and place, when and where the defendant is required to appear before the magistrate, to answer in the action. The designation of this time, within the statutory limits, is a matter solely for the deter
There was no appearance by the defendant in the justice’s court, unless the appeal taken by him to the district court, upon questions of law alone, is to be considered as having that effect. It is contended by plaintiff that, in bringing that appeal, defendant waived his right of objection to the jurisdiction of the justice over his person, inasmuch as it was equivalent in its effect to a voluntary appearance in the justice’s court; and the correctness of this proposition is the main question presented for determination in this case. For the maintenance of this proposition we are referred to the case of Johnson v. Knoblauch, 14 Minn. 16, as an authority in point, decisive for plaintiff; and such seems to have been the conclusion of the learned court below. Considering the remarks of the court, in that case, concerning the effect of a general appearance, in connection with the reporter’s statement of facts, it is not difficult to see how the court was
The remedy by an appeal was of an entirely different character. Its office was simply to remove a case into the appellate court for the purpose of a retrial upon the merits, the same as though it had been originally commenced therein, and irrespective of any errors of law committed by the justice, either in assuming jurisdiction without lawful authority, or in its improper exercise where rightfully obtained. The very object of the appeal being to secure such a retrial, it was not allowable to the appellant to defeat it by interposing an objection, which, if sustained, would oust the appellate court of its jurisdiction. Hence the doctrine, applicable to appeals of this kind, that the act of bringing the appeal is a general appearance in the action in the appellate court, and that it precludes the appellant from raising any questions affecting
In the change of practice which was effected by the act of March 2, 1865, while this latter remedy was substantially retained in the provision allowing an appeal upon questions •of fact, there was substituted for the remedy by certiorari that of an appeal upon questions of law alone, which was designed to serve the same purpose and fulfil the like office. Williams v. Bigelow, 11 How. Pr. 83; Sperry v. Reynolds, 65 N. Y. 179. The appeal before us, being of this latter character, must be treated as having the same scope, purpose and effect of the former remedy by certiorari. It brings before the appellate court for consideration and review all errors of law, jurisdictional or otherwise, apparent upon the return of the justice, and properly excepted to, where necessary; and such has been the ruling of this court in Mattice v. Litcherding, 14 Minn. 142, and Rahilly v. Lane, 15 Minn. 447.
It follows from these views that the question of jurisdiction ■raised in this case was properly before the district court, and not waived by any act of the defendant, and that the judgment which was rendered by the justice ought to have been set .aside.
There is nothing in the point that the district court had no authority to require an amended return as to the truth or falsity of a docket entry, or to try the case upon such amended return as respects the fact stated in such entry.
Judgment reversed.