Jacoby v. Waddell

61 Iowa 247 | Iowa | 1883

Seevers, J.

— The statute provides: • “The justice rendering a judgment against a defendant must inform him of'his right to an appeal therefrom, and make an entry on the docket of the giving of such information, and the defendant may thereupon take an appeal by giving notice orally to the justice that he appeals, and the justice must make an entry-on his docket of the giving-of such notice.” Code, §4697.

The justice failed to-inform the plaintiff of his right to an appeal, and failed to make such an entry on his docket. Be-

* cause of this omission it is said that the judgment of conviction rendered by the justice is void, and the plaintiff entitled to a discharge. The learned judge before whom the hearing on habeas corpus was had ordered that the “appeal bond be fixed at $100, in case the relator shall desire to appeal from said judgment,” and remanded the appellant to the custody of the defendant. We think the relief granted the plaintiff was all he was entitled to. The plaintiff is presumed to know the law, and he was clearly entitled to an appeal, notwithstanding the omission of the justice. . If he had expressed a desire to appeal, the justice, without doubt, would have fixed the amount of the bond. Because of the omission of the justice, the plaintiff was not deprived of any substantial right. The judgment remained in full force, although the justice failed to inform the plaintiff that he was entitled to an appeal. In principle this case is not different from Murphy v. McMillan, 59 Iowa, 515. Following that case, the order of the judge of the district court rust be

Affirmed.