6 Iowa 52 | Iowa | 1858
— We think the court erred in affirming the judgment, under the circumstances. The appeal was allowed and perfected on the day on which the judgment was rendered by the justice of the peace. In such case, the law does not require that notice of the appeal should be served on the appellee. It is the duty of the justice to make his return to the district court, five days before the beginning of the term. On his failure to do so, he may be compelled, by rule of court, to make or amend his-return. Code, section 2338. The law does not, however, affix, as a penalty on the party, for the failure of the justice to do his duty, and file the transcript and papers, that the judgment shall be affirmed. When-the return of the justice is filed in the office of the clerk, whenever that may be, the cause is to be deemed in the district court. Code, sec. 2337. On the neglect or refusal of the appellant, to take any measures to get the cause into the district court, after an appeal taken, the appellee may have the cause docketed himself, and the appeal dismissed, or the judgment affirmed, as justice may seem to require. In this instance, the justice had made his return, and the cause was regularly in court, before the term at which the motion of appellee was made to affirm the judgment. Under the circumstances, the judgment of the district court must be reversed.
Judgment reversed.
