49 Tenn. 629 | Tenn. | 1871
delivered the opinion of the Court.
In an action of replevin before a Justice of the county of Jackson, there was judgment against the defendant, and the case was taken by appeal into the Circuit Court. The proceedings before the Justice do not show that an appeal was prayed and granted; but an appeal bond was filed, dated of the day of the judgment before the Justice. "When the case was called in the Circuit Court, the plaintiff moved to dismiss the appeal, because the appeal bond was not, in fact, executed within the two first days after the judgment was rendered, and because it does not otherwise appear that an appeal was prayed' and granted. In support of this motion, the plaintiff introduced the Justice who rendered the judgment, and was permitted to prove, over the defendant’s objection, that the appeal was prayed and granted on the day of the trial, Monday, the 26th of October, 1868; and he gave him, the defendant, the form of the appeal bond, which the defendant brought back executed, and delivered to him on the Saturday following. The defendant asked leave of the Court to allow the Justice to amend the pleadings, so as to show that the appeal was regularly prayed and granted at the proper time. This motion the Court disallowed, and gave judgment dismissing the appeal, and awarding a procedendo to the J ustice.
The judgment of the Circuit Court was erroneous. The fact appears that the appeal was, in fact, prayed and granted; and the Justice should have been permitted to
The judgment is reversed, and the cause remanded for trial upon its merits.