22 S.D. 51 | S.D. | 1908
That the circuit court in which this action to recover $14.25 was tried de novo- on appeal from a justice of the peace was without jurisdiction, for the reason, that plaintiff’s notice of appeal was fatally defective, is the first proposition presented and relied upon as ground for reversing a judgment in favor of plaintiff and the order denying defendant’s motion for a new trial. The justice court judgment recites that, “after hearing the argument and considering the testimony, I hereby order and decree judgment in favor of the defendant and against the plaintiff for a dismissal of the action, and hereby render judgment against, the plaintiff for costs in this action; the same being in the sum of $14.60.” Omitting the name of the court, parties, and venue, .the notice of appeal made the basis of an unsuccessful motion in circuit court to dismiss the appeal reads as follows: “Please take notice that the plaintiff in the above entitled action appealed from the whole of the judgment entered therein on the 6th day of December, 1905,
Without giving a form for the guidance of a party to an action desiring to appeal, section 99 of the Revised Justices’ Code provides that the appeal is taken by serving and filing in the manner designated, a notice of appeal '“which must state whether the appeal is taken from the whole or a part of the judgment; and if from a part, what part, and whether the appeal is taken on questions of law or fact, or both.” Section lot of the act is to the eli’ect that, when the appeal is taken on both 'questions of law and fact and a new trial in the appllate court is demanded in the notice, the action must be tried anew in that court. In support of the motion to dismiss for the reason that the circuit court ivas without jurisdiction, it is urged the use of the word “'appealed,” instead of "appeals,” in the notice of appeal, suggests that plaintiff had previously exercised that right; but he is not charged with bail faith, and no prejudice to the defendant is claimed on account of such an inadvertent error in grammatical tense. While the notice of appeal is made the jurisdictional instrument by which the case is nanismitted from a lower court to a higher court for review, and • M\s«.nt action should he denoted therein by the use of apt words, it is very plain that the service of the notice under consideration convoyed actual knowledge to the defendant that plaintiff, being dissal ¡.died with the judgment rendered in justice court, appeals ibivciVom on questions of law and fact to the circuit court wherein ;; new trial is demanded. U being universally recognized doctrine d -n .■ remedial statiPe should he liberally construed to effect its ■ ¡si something mom Tan a clerical mistake by a person pur-•m.v. .be pi escribed m.-ibn] of removal is necessary to defeat the !■ ’■ o; u¡el by jury on appeal from a justice of the peace. We are ¡ ;-.>etcd by counsel for appellant to the case* of Chinnnek v. ; n ■, W is. ;;(>') where it is icluetantU held that a pvovis-the Wisconsin statute with reference to notice must be 1 .o-^ued with rigid ovarme in ordei (o eon for jurisdiction 1 ..1 ; ■ oopeüaíe court, an ! from the opinion \, • ¡cm hv Dickson, i. v e manic as bi¡i■ <■ v.: The w'lv d, r:-.r n ■. of this. rom': v:..-d in ei- brief, and ;!v medy reiüvú in nuier to give jurisdie-lioii i- v-.e; of apnea' . 'om junices of the pea.ee, are familia' 1 ■, d-¡ v ."'¡vlcmeis of ¡be Dm who have had occasion to investígale '•■o ulnor1. The seme rigid doctrine was reiterated and applied In
Counsel for appellant also insist that the docket of the justice, quoted in this opinion, shows that two judgments were rendered in that court, one for the dismissal of the action and the other for costs, and that the appeal was taken, from the latter alone; but the view is neither justified by the record nor by the notice of appeal. As the recitals of the notice are applicable to but one judgment, which is sufficiently described therein to prevent any person of ordinary understanding from being misled, it would require an unwarranted observance of something more exacting by far than the letter of the law to' reverse the ruling of the circuit court on the motion to dismiss for the want of jurisdiction. Lancaster v. McDonald, 14 Or. 264, 12 Pac. 374; In re Dugan, 129 Iowa, 241, 105 N. W. 514; Horrell v. Homebuilders’ Ass’n, 40 Wash. 531, 82 Pac. 889. But one judgment can be rendered in an action trie i in justice court, and sections 79 and 93 of the Revised Justices’ Code expressly require the justice to specify, tax, and include in such judgment the costs allowed by law to the prevailing party, and that is exactly what was done, although some superfluous words were used. “Much less degree of technicality and formality is required in the judgments of justices of the peace and other inferior courts that i-s exacted in respect to' the judgment of courts of record.” Black on Judgments, 115. The phraseology of the justice distinctly shows the final adjudication and determination of the rights of the parties to the action by a judgment of dismissal, and for costs against plaintiff in favor of defendant, and from die whole of such judgment plaintiff appealed on questions of both law and fact, and demanded a new trial in circuit court. This judgment and the notice of appeal must be tested by substance rather than b) form, and appellant’s standard for the interpretation of proceedings of this character finds no justification in law. Lynch v. Kelly, 41 Cal. 232; Felter v. Mulliner, 2 Johns, (N. Y. 181; Gaines v. Betts, 2 Doug. (Mich.) 98.
At the trial of the case of Schneider v. Kirkpatrick, 80 Mo. App. 145, plaintiff sought to contradict a written contract between the defendant and one Smith, to which he was not a party, by attempting -to prove by parol that such written contract did not correctly state-the terms of a settlement under which he claimed a substantial right; and the court said: “It would be strange if he could prove and enforce promises made to Smith which Smith himself could not prove or enforce. The position of one for whose benefit a promise is made cannot be better that that of the one who
't the conclusion of the trial, and after the court refused to ■-rr nit Frank .-Alton to testify that there was an oral ain e-< w mr, made at the time the partnership was dissolved, by which mspm'd-ent I!nag assumed and obligated himself to pay the individual debts of the witness, an application was made to file an amended an1-.er, ;1!<-ging fraudulent representations of responden! :< ■ to agree'.lent entered into at the dissolution of the --.a-í-n:-¡ -hip. appellant claims the right to offset .Alton's individual debt to liim against Dic. debl to the pa’-t'i',-''sbin of i Gag <?.- Alton, and both ot-d," inrn ...ítv from liah'.lilv under the contract of dissolution. ,b - v, eight of well-reasoned authority b" to, the effect that neid.w 1 ."'i go behind ilv' clear langun"V of the written in- ■ in:'-'<-nt. unless there is smucihing to justify both in doing; so. Not ¡he iigbiest ambiguiiv, rieempletcniws, or uncertainty is claimed or can be found in the contract for the dissolution of the partnership of
The judgment appealed from is affirmed.