1 Iowa 507 | Iowa | 1855
The orders dismissing the writ of error, and the refusing the rule on the justice to allow the appeal, are now assigned for error. The first assignment raises the question, whether, under the Code, a writ of error as such, is allowed, to remove the proceedings of a justice in a case arising under this section, into the District Court for review. We do not think it is.
"We have no doubt but that this is a criminal proceeding. The offences punishable, by the chapter under which this information Avas filed, are under the Code misdemeanors, and for the apprehension of persons offending against its proArisions and their punishment, we have the same summary Avrits and general directions, provided for and given for the trial of other misdemeanors and public offences within a justice’s jurisdiction. Being criminal, then, the question still remains, whether it comes within the class of cases referred to in section 2849. And we do not think it does. That section, we think, was designed to apply alone to civil cases; and especially so, as by section 3358, a full remedy is given the aggrieved party in these cases, by Avhich he has an opportunity to be reheard in the District Court, on any alleged errors in the proceedings or conviction complained of; and also on a neAV trial, Avithin the discretion of the court. This section, together with sections 3359 to 3365, inclusive, in our vieAV, furnish the only method, in all
The defendant further claims, however, that the’ court should have directed the .justice to allow an appeal. In this view, we cannot concur. ’ It appears that no affidavit was made before the justice, and none at any time before any person, until the 18th of January, before the clerk of the District Court, being the one which is the basis of this proceeding. Nor was any bond filed, or offered to be filed, until the 8th of that month. The defendant insists that these filings, and offers to file, were in time, being within twenty days after the judgments were rendered. This cannot be, for the law requires that the affidavit shall be made, and the defendant’s recognizance be entered into, “ on the rendition of the judg
But, again: it is said that tbis was a proceeding against a lot; that tbe occupant, or party in interest, bad no notice of tbe proceedings, and be could not, therefore, sooner make tbe affidavit; and that to deprive a person of tbis remedy, would virtually be to deny him any bearing. Tbis case is a fair illustration of tbe fallacy of this 'argument, when we come to give it a practical application. It appears from tbe justices’ returns, that Q-erlacb did know of tbe prosecution; that be asked to bave tbe trial postponed; but did not ask to defend tbe action. How, then, was be surprised ? or why can it be claimed, that be, as tbe claimant'of tbe property, or tbe person in possession of tbe premises, should bave time extended to him that is not provided for other persons ? For aught that appears, be could just as well bave made tbe
Judgment affirmed.