#### ROBERT BRYANT, *pl'ff*in error, *vs.*GEORGE BARBER, *def’t in*error,

> *Error to Milwaukee county.*

When a party appeals from the judgment of a justice of the peace, he must have an entry of his appeal made *in*the District Court on or before the second day of the next term after the appeal is taken; and if the justice fails to send up the papers as required by law, he must within that time take a rule against him to make return: If the appellant neglects to take the neccssaryste.ps to get Ills appeal before the court until after the second day of the term, he cannot have it entered on a subsequent day, and the right accrues to the appellee to have the cause entered and judgment rendered in his favor upon the judgment of the justice.

Barber obtained a judgment against Bryant before a justice of the peace of Milwaukee county, from which Bryant appealed on the 12th February, 1842. The next term of the District Court commenced on the 13th of Junej 1842, and on the 18th June, before the time of trying appeals, according to the arrangement of business in court, the justice who fried the case, handed the papers to the clerk, when the appeilant’s counsel requested the clerk to enter the cause on the docket. The clerk declined male, ing the entry,' and upon referring the matter to the Court, the Judge directed him to file the papers but not to enter the cause. On the 1st July, on motion of the appellee, the cause was entered &nd judgment rendered in his favor for the amount recovered be*146fore the justice, with interest, damages and costs, according id the statute, the appellant, by his counsel, being in court at the' time and objecting thereto and offering to go to trial.

To reverse this judgment, Bryant sued out a writ of error and has brought the cause into this court.

Lxnde, for pl’tff in error:

The sixth and eighth sections of the act, upon the subject of appeals, Stat. Wis. 333, are directory and not imperative. It is made the duty of the justice to file the papers on or before the first day of the term, and until he does *so; the*appellant cannot have the cause entered, for there is nothing before the court to he entered. If the justice neglects his duty and delays the matter, the appellant ought not to suffer for it. The statute gives the court the power to older appeals to be entered otherwise than is therein directed. This was intended to embrace cases like the present, where the justice brings in the papers after the second day, and the appellant asks, before any motion is made by the ap-pellee, to have the appeal entered. The rigid practice that has been enforced in this case, ought only to be adopted in cases where the appellant does not appear, or take any steps to bring his appeal forward, and should-not be applied when he has been guilty of no laches and the delay has been occasioned by the neglect of the justice. In New York, it has been decided, that though the justice does not file his return until after the first day of the term next after the appeal, they ought not to quash it, but proceed thereon when the return comes in. *Exparte Kellogg,*3 Cowen’s Rep. 372.

Opinion of the Court, by

Judge 'Irvin:

This cause came up on error to the District Court of Milwaukee county.

The suit was brought before a justice of the peace to recover compensation for tho use of horses. Before the justice, defendant made no defence, but after judgment given for plaintiff, took an appeal to the District Court. The justice gave judgment on the 12th of 'February, 1842. The District Court commenced on the 13th of June, 1842, and to which court the justice made his' return the 18th of J uno, when the counsel for the appellant moved the court to have the same entered, which was not so ordered, the clerk merely marking it filed. On the first day of July of the same term, the appellee, by his counsel, moved the court to *147have the appeal entered, which was done, and judgment in hisfa-vor given, for the sum in which the justice had given judgment, together with interest, and twelve per centum damages,- to all •which the appellant objected.

Lvnde and Wells, for pl’tff in error.

By the 6th section of the 9th article, page 333 of the Statutes of Wisconsin, the justice is required to file, on or before the first day of the term of the District Court next after the appeal, in tjie office of the clerk of said court, a transcript of his docket, together with all the papers in the case in which the appeal is taken. By the 8th sec. the appellant shall cause an entry to be made of the appeal on or before the second day of said term, unless otherwise ordered by said court; “provided, that if the appellant shall fail or neglect to enter the appeal as aforesaid, the ap-pellee may have the same entered, at any time during that or some succeeding term, and the judgment of the court below shall be entered against the appellant for the same, with interest, and twelve per centum damages and the costs of both courts.” — . When the justice failed to make return, as the law required, the appellant might, on or before the second day of the term, have taken a rule against him to make return, upon the coming in of which, he could then have proceeded in the suit; but failing as he ■did, until the time at which the justice made Return, the right had accrued to the appellee, to have and take the judgment which he obtained at that term of the court. The District Court committed no error, and the judgment therein given must be affirmed with costs.