#### JAMES CAVENAUGH, Plaintiff in Error, *vs.*GILES H. TITUS, Defendant in Error.

ERROR TO MARQUETTE CIRCUIT COURT.

Motions made in the progress of a cause and the ruling of the court thereon, are not properly a part of the record unless made so by hill of exceptions.'

The decision of a motion which necessarily determines the cause if properly made part of the record, is so much in the nature of a final' judgment that a writ of error will lie thereon.

It is error to render a judgment of nonsuit for irregularity in taking an appeal.

An appeal lies from the judgment of a justice of the peace, by the plaintiff, in case judgment be rendered against him, where the amount claimed is over $50, and the proper affidavit be made.

Section 2, of chapter 34 of Session Laws of 1855, supplies the cams *omissus in*chapter 88 of the Revised Statutes on the subject of appeal.

Although the material facts sought to be reviewed will not be noticed unless made a part of the record by bill of exceptions, yet the court will look into the record proper and pass upon any matters assigned for error thereon.

If an appeal be irregular the proper course is to dismiss the appeal, not the action.

This was an action of assumpsit tried before a justice of the peace where judgment was rendered against the plaintiff, the present plaintiff in error, for costs; whereupon the plaintiff appealed to the Circuit Court, where, on motion, the action was dismissed for alleged irregularity in taking the appeal. The opinion of the court contains a full statement of the facts in the case.

*Alvah*Hand, for the plaintiff in error.

*By the*Court,

Smith, J.

This was an action of assumpsit, brought by the present plaintiff in error, against the present defendant in error, before a justice of the peace of Marquette county, for work and labor, claiming $83.

The statement of the cause of action was oral, for work and *144labor. Tbe defendant pleaded tbe general issue, witb notice of special matter.

Tbe justice, upon tbe bearing before bim, rendered judgment against tbe plaintiff for costs; from wbicb be appealed to tbe Circuit Court.

At tbe March term of tbe Circuit Court, 1856, tbe attorney for the defendant moved tbe court, “to dismiss tbe cause for reasons on file,” *“*wbicb motion is granted by tbe court.” Wbat these reasons “ on file ” were, nowhere appears in tbe record proper. Tbe clerk has copied tbe motion, and sent such copy up witb tbe jsapers; but there is no bill of exceptions by which the motion and tbe ruling of tbe court thereon is brought to and made a part of tbe record, nothing on tbe record to show that tbe particular grounds of tbe motion were brought to tbe attention of the judge, or that bis ruling thereon was excepted to.

It is apparent that such a mode of reviewing tbe cases decided by tbe Circuit Courts would be grossly unjust to tbe judges thereof, and we cannot countenance such practice. It is true, indeed, that the decision of this motion disposes finally of tbe case, and we have held repeatedly that such decisions being in tbe nature of a final judgment, would sustain a writ of error, and were subject to review in that form. But we have not held that it was unnecessary to place fully and fairly-.such decisions upon the record, by bill of exceptions, duly settled. This is alike due to the judges who may have determined tbe case, tbe parties interested in jts review, and to tbe court whose duty it is to pass in review upon tbe proceedings of tbe court below.

From tbe record presented in this case it. appears quite probable that the attention of tbe court below was never called to tbe particular “ reasons ” for the motion placed on file, or to tbe form of tbe entry of tbe judgment thereon, wbicb would have necessarily been tbe case bad a proper bill of exceptions been tendered to, settled and signed by bim. Although motions like this, to dismiss the appeal or tbe case, if sustained, finally dispose of tbe case, and such determination will sustain a writ of error, it by no means follows that they are a part of the record proper. On tbe contrary, they can only be made so by bill of *145exceptions, duly settled, and allowed by the judge. This he has a right to require, and simple justice suggests an adherence to this salutary practice. If a clerk be permitted to send up a copy of every motion put on file by him in the progress of a cause as a part of the record of the court therein, many of which have never passed under the eye of the judge, not only will great confusion result, but injustice be done, not to the court only, but to the parties themselves.

But although we have made the remark we have, yet we are bound to look into the record of the judgment rendered, and see whether or not it is sustained thereby. In doing so, as well in review of the record proper, as to settle the practice in similar cases, we have looked into the motion, as well as the form of the judgment thereon.

It appears from the record in the case, that the appeal was duly entered in the Circuit Court, when the attornejr for the defendant moved the court “ to dismiss -said action and take no further cognizance thereof, because he says, that the said James Cavenaugh, the plaintiff and appellant, did not recover any judgment for any sum of money, or other thing, in the court below ; but that the said defendant recovered judgment for his costs; and also to dismiss the cause, for the insufficiency of the affidavit for the appeal,'and other deficiencies and irrregularities in the records and files of this court.”

The following is the judgment rendered: “Whereupon it is considered and adjudged, by the court, that the said plaintiff take nothing by his said suit, but that the said defendant do recover of the said plaintiff his costs and charges by him made in his said suit, in that behalf expended, and that he have execution therefor.”.

The affidavit for appeal is in the following words, after the title of the cause and court: “ Mathew Coleman being duly sworn, says, that the appeal in the above entitled suit is made in good faith, and not for the purpose of delay ; and that the said James Cavenaugh has a valid claim against the opposite party of more than fifty dollars, as set forth in his pleadings in the above entitled suit.”

*146No objection, is taken to tbe form or substance of tbe recognizance.

Tbe judgment rendered in tbe case is one of nonsuit, and is clearly irregular, and is one of those mistakes of tbe clerk wbicb frequently occur. If tbe motion is good for anything, it is only for tbe dismissal of tbe appeal; but it is not good even for that.

In tbe Revised Statutes on the subject of appeals from tbe judgment of a justice of tbe peace, there was a *casus omissus*wbicb tbe courts could not supply. But chapter 34 of tbe Session Laws of 1855, § 2, supplies this omission, and tbe affidavit in this case is conformable thereto. Tbe judgment appears to have been based upon tbe motion, and is wrong. Tbe affidavit is sufficient, and if no other cause of dismissal or non-suit appears, tbe suit and appeal ought to have been entertained by the Circuit Court.

Tbe judgment of tbe court below is reversed, and tbe cause' is remanded for further proceedings according to law.