Betts sued Gaines before a justice of the peace, and declared against him on a contract for building a barn, alleging that he had performed his contract, and was entitled to the price agreed to be paid by Gaines. The suit was tried by a jury, and a verdict rendered in favor of Betts. Gaines removed the cause to the circuit court by certiorari.
The first question presented by the case is, whether there is any judgment to be either affirmed or reversed. According to the return,- the justice’s docket shows that the case was submitted to the jury on proofs, and that,
“ The jury returned with a verdict for the plaintiff of eighteen dollars damages, - #18.00
“ And costs of suit taxed at five dollars, - 5.00.”
No other formal entry of judgment by the justice is made on the docket. The defendant in error, in whose favor this entry is made, contends that here is no judgment to be affirmed or reversed ; and, consequently, the court will not examine it on certiorari.
The justices’ act (S. L. 1841, p. 98,) imperatively requires the justice to render judgment on the verdict of a jury called to try a cause. He has no power over the verdict, and no discretion in the matter; he can do nothing to avoid or set it aside. The verdict is itself the judgment of the law in the case, and the justice is simply required s o
It would be clearly a bar to another suit for the same cause of action, and, being a determination of the rights of the parties as a final adjudication, must be so considered for the purposes of review by certiorari.
It is contended that the evidence showed that the plaintiff below had not built the barn according to the terms of his contract, and, therefore, could not recover the stipulated price. Without proof of performance, it is clear that he was not entitled to recover in the case. Whether he had performed or not was a question of fact to be determined by the jury on the whole testimony, and the judgment should not be reversed on certiorari, unless there was a total want of testimony to sustain the finding of the jury on the point in question. If there was any proof to sustain the finding, the verdict should stand. Of this we can judge only by having before us all the testimony given upon the subject to the jury ; and the return should show that all this testimony is returned. Where the justice merely returns the names of certain witnesses, and states the testimony, without showing that he has given the whole of that testimony, we should presume that other proofs were given in the case upon which the verdict was founded. If a party asks a superior court to reverse a judgment, upon the testimony merely, he must see that his return contains all the evidence, and that it shows that the whole is returned.
This is not shown in the return before us- The justice has returned, as a part of the entry on his docket, what certain witnesses stated; but does not return that he has
Ordered certified that the judgment below ought to be affirmed.