Keen v. Turner

| Mass. | Jul 15, 1816

By the Court.

This is an award in nature of a judgment, and it is a final decision of the cause. The plaintiff has lost by it the fruits of the judgment which he recovered in the justice’s court. The effect of that judgment was destroyed by the appeal, which, as far as we can now see, was regularly claimed and prosecuted. The plaintiff was then entitled to a new judgment in his favor; unless, upon some issue in law or fact, the ra ise should have been determir-ed against him ; or unless, after a verdict for him, the judgment shou’d hav e been arrested. There is no issue of law joined on the record ; and there has been no trial of the issues of fact. The judgment p* the Circuit Court of Common Pleas being thus substantially erroneous, the irregular form in which it was entered cannot oust this Court of its jurisdiction of the cause. We must now enter such judgment as that Court should have entered. It cannot be known what that judgment should be, until after a trial of the issues of fact. The judgment of the Court below is reversed ; and a venire facias de novo must be awarded.