Curtiss v. Beardsley

15 Conn. 518 | Conn. | 1843

Hinman, J.

The first question which seems to be presented by this record, arises upon the replication to the defendant’s plea. ♦

The defendant having pleaded to the plaintiff’s declaration of debt on the judgment of a justice of the peace, that the defendant appealed the action in which the judgment of the justice was rendered, to the county court; the plaintiff replied to this plea, that the defendant did not enter his appeal in the county court before the second opening of said court; and that the same was not legally entered in said court, at any time afterwards. This replication is demurred to. And the question, in this part of the case, is, whether the replication is sufficient; or, in other words, whether an appeal from the judgment of a justice, duly taken and allowed, vacates the judgment, or whether it only suspends it, so that, if the appeal is not carried forward, it remains a valid judgment in the cause.

By our practice, under the statutes regarding appeals from justices, and appeals from the county court, the cause is brought up entirely unembarrassed by any proceedings in the court below. Unlike a writ of error, or proceedings at common law in nature of appeals, (in which only the precise point decided is carried up for revision) the whole cause is brought before the appellate court, as if it had been originally commenced there. The parties, as respects the merits of the cause, may plead anew, as if there had never been any pleadings in the inferior court. And the entry of such new plea is considered, and treated, as a waiver of the former pleadings in the cause ; and by the modern practice, not even the formality of intimating or suggesting a change of plea, is observed ; but the parties proceed as if no proceedings had taken place in any other court. 6 Conn. R. 149. 8 Conn. R. 502. The practice is entirely different in appeals from probate. The statute relating to appeals from that court, is different. It is only the order, sentence, denial, decree or judgment of a court of probate in the settlement of an estate, that may be appealed from; (Stat. 236. ed. 1838.) whereas, in suits before justices of the peace, and in the county court, which are appealable, it is the cause itself, and not some order, or denial, or decree in the cause, that may be appealed from. Stat. pp. 48. 57. 58. (ed. 1838.) The superior court has no jurisdiction of probate causes, except for the purpose of reversing the judgment of the probate court; and when that is done, it sends the cause back again, to be proceeded with according to law. But in causes appealed from the county court, it takes cognizance of the cause itself, when it is once properly before it, and renders judgment, and carries its judgment into execution, by issuing such process as is necessary for that purpose. So, in causes appealed from a justice of the peace, the county court takes cognizance of the cause, as if it had originally commenced there, and renders judgment, and carries its judgment into effect, by execution or otherwise, as does the superior court in causes brought before it by appeal from the county court.

From this view of appeals from justices, and from the county court, as contrasted with appeals at common law, and appeals from probate, we should entertain no doubt, that, upon principle, the effect of the appeal pleaded in this case, would be, to vacate and render null the judgment of the justice; as it is very clear, that if the judgment remained good, the original cause of action would be merged in it, and might even be pleaded as a bar to it. For neither the statutes authorizing appeals, nor any other statute, that we are aware of, authorizes á matter to be tried over again, while there is a valid judgment existing; unless the second trial is for the purpose of revising the former judgment. This opinion is strengthened, by the uniform practice of the profession, in resorting to the recognizance taken on the appeal, when not carried forward ; and to a suit on the original cause of action ; and yet we never heard of an attempt to set up the judgment which had been appealed from, in answer to such á suit.

Considering, then, the statutes regarding appeals; the practice of the profession; and that an ample remedy exists, by a suit on the recognizance entered into when the appeal is taken, and a suit on the original cause of action, in those cases where a defendant refuses to carry forward the appeal he has taken ; and that if the appellant neglects to carry forward the appeál, the appellee may do so, and have the justice’s judgment affirmed, we should not hesitate to say, that the appeal did vacate the judgment. But we are not without authority upon this question. In the case of Campbell v. Howard, 5 Mass. R. 376., C. J. Parsons lays down the law in these words : “ When the appeal is allowed, the judgment no longer, in legal construction, remains in force, and cannot be the foundation of an action of debt.’'

But, it is claimed, thai, however this may be, assuming that the replication is insufficient, it is still as good as the plea ; and as the demurrer reaches back through the whole record, and attaches upon the first substantial defect in the pleadings, tire plaintiff is still entitled to judgment.

The plea is said to be defective, in not averring that a bond dr recognizance was entered into, at the time of allowing the appeal; and also in not averring that the appeal was carried forward.

The last reason has* already Been considered; and the first most obvious answer that might be given to the claim# that no bond or recognizance is alleged in the pled, to have been entered into, to carry forward the appeal, is,- that the-plaintiff, in his replication, expressly admits, that án appeal was taken and allowed from the judgment of the justice. This part of the replication is in these words : “ Though true it is, that upon the rendering of the said judgntent, in the said plea mentioned, against the defendant, the defendant moved an appeal to the county court, then next to be held at Fairfield, in and for the County of Fairfield, on the third Tuesday of April, 1833, which said appeal was then and there allowed by sftid justice Fairchild.” These being the words of the plaintiff in error, must be taken most strongly against him ; and thus taken, they amount to an admission, that a valid appeal was taken and allowed. He no where complains, that the appeal was invalid, because no bond or recognizance was given ; but his complaint is, that the appeal was not carried forward. He does not treat it as a nullity, and traverse the plea, as he might have done, if no recognizance was in fact entered into ; (5 Mass. R. 376.) but he says, substantially, that the appeal was not carried forward, and concludes with a verification. He must be taken, then, by thus pleading over, to admit a valid appeal. Com. Dig. tit. Pleader. G. 2.

But we do not place the case upon this ground, alone. We think the plea sufficiently avers a valid appeal. The allegation is, that upon the rendition of the judgment by the justice, the defendant moved an appeal to the county court, then next to be held at Fairfield, in and for the county of Fairfield, on the 3rd Tuesday of April, 1833; which appeal was, then and there, allowed by said justice Fairchild; all in due form of law.

Now, it is a familiar rule in pleading, that circumstances necessarily implied, need not be alleged. Stephens on FI. 353. Thus, if a feoffment be pleaded, livery of seisin is implied in the word “ enfeoffed.” Co. Litl. 303. h. In pleading an attachment, it is not necessary to allege that a bond was given. 2 Sw. Dig. 592. And the allegation, that a party, by his deed, revoked the authority of an arbitrator, was held to import notice to have been given to the arbitrator. Vynior’s case, 8 Co. 162: Marsh v. Bulteel, 5 B. & Ald. 507. (7 E. C. L. 175.)

Ib analogy to these cases, and upon the principle, that whatever is necessarily implied, need not be alleged ; we think the allegation, that an appeal was allowed, is a sufficient allegation that a bond was given, inasmuch as it is very evident, that, without such a bond, there could be no appeal.

For these reasons, we are of opinion, that there is no error in the judgment of the superior court.

In this opinion the other Judges concurred.

Judgment affirmed.