Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1878-08-14

Haynes '. Mosher Is i'd. 218. II, therefore,
they come without subpoena. at plaintiff .
request, and are material aud necessary At
the time. and the case is postponed at de-
fendants motion, their costs should b tax.
ed.
The practice upon appeals Of this kind, il
defined BY section 50 Of the Justices Code.
1t is in the nature Of writ of error. The
entire record il brought up, aud 10 open 70
revision BY the appellate court; and when
ever an error is apparent on the face of the
record it 10 open to revision, whether it ap-
pears by exception, or not.
By this record, or copy Of the docket it
erred in the taxation of his own fees. He
has charged two days at two dollars per day,
for attendance upon trial. The statute pre-.
scribes he shall have for leach days atten-
dance upon trial of = cause, after the first
day, two dollars" In the case of Ross
teuscher v. Bentley, in 1874. I decided this
point, and I am still disposed to adhere to
that ruling. This portion of the fee.bill
means that after q first. days trial or portion
of . trial, then upon proper adjournment.
and a further trial, two dollars may be
charged for the second days trial. In the
case in hand, the record discloses that on the
return-day (the first of November, 1870,
the defendant files affidavit for continu.
ance'-and therefore this case is adjourned
to November 9Th, A. d.. 1877, at III o'clock
A. NJ" For this adjournment the Justice
was entitled to fifty cents; as also to proper
costs for taking the deposition of Ellen
Lindley. But there was no trial Of the mat
ter in dispute on the first of November.
The law means that, in consideration of the
other fees allowed to the negative, he shall
devote one day to the trial, or part Of the
trial, gratis. The trial did not commence
until the 9Th Of November. There was a
partial hearing on that day, and an adjourn
ment until the next day. Consequently, the
charging for tuo days wac error. Only one
day should be allowed.
2nd.-He charges for four ad%journments
at fifty cents each. He is entitled to but
three, at the utmost. The postponement
from the 9th to the 18th, seems to have been
made without any objection from the parties
or their attorneys, who were all present ;
and the consent of the parties to that adj
%journment, is to be presumed, under section
3rd.-He charges for taking evidence"
three dollars. I suppose he means for
taking his notes of the testimony, at the
rate Of one cent for each ten words. The
fee-bill does not authorize any such charge.
4th.-He charges fifteen cents for taxing
costs. / do not find any warrant for this.
5th.-He also charges for 40 Rulings
one dollar. I do not see what this means.
1 fail to perceive in the record the entering
of ten motions or rules. There was a motion
to dismiss the action, which is taxed. For
each such entering, ten cents is allowed.
6th.-One thing, however, he has omitted,
which ought to be taxed-for entering judg-
ment, fifty cents.
7th.-Two subpenas are taxed but the
record and papers returned, show only one
issued.
The consideration of another and a very
important matter must not be emitted. By
Article TX of the Code of Civ. Proc, the
District Courts have the power to grant new
trials for any Of the seven causes therein
enumerated, one of which is for the "Insuf-
6ciencv of the evidence to justify the yer.
dict or other decision," etc. And the su-
preme court, upon such cause alleged, has
Jurisdiction and is bound to look into the
facts or merits, upon appeal from an order
granting or refusing such new trial. See
section % of the Code, comforting appellate
Jurisdiction upon that Court.
But Justices courts are of peculiar and
limited jurisdiction and, under their Code,
no such power to grant new trials is confer
red. Indeed, such power seems to have
been ~purposely withheld. II, however,
they have such jurisdiction, by any impli-
cation, than in the present case, there was
no motion for a new trial. On either branch
of the dilemma, what jurisdiction has this
court, IS an appellate tribunal, to review, on
an appeal on questions of TAU alone, ques-
lions Of facts, or the weight or efficiency
thereof? In each action there are two kinds
of issues-of law and of fact ; and before q
Justice, the notice must state whether the
appeal is taken on questions Of law or fact,
or both. If the latter, no statement is re-
quired, and the action must be tried anew.
If the former, the appeal is like q writ Of
error, and the review il strictly limited to
questions of law alone.
The ninth, tenth, eleventh, twelfth, and
thirteenth assignments of error of law, in
the statement before noe have reference,
mainly, to the weight of evidence. OF its In.
suf1ciency; and this court is asked to ex-
anime and review voluminous notes of evil
dence, stipulated to be used "as part Of the
statement" of the applicant.
There ts no certificate, stipulation, or any
proper thing of that nature, that the notes
or minutes before me contain all the cot
dence in tile case. On the contrary, it is to
be presumed that this court has only go
mach of the Evidence" as is necessary TO er-
plain the grounds Of law properly to be al
legged as error. (See Sec. 90, Justices Code.)
The inference is. that the entire evidence Is
not here. In q csse of this nature. properly
brought before the Supreme Court, IN ap-
peal from the district court, the former
would not look at the evidence. unless 1t
were legally shown that the record contain
ed all the evidence. This court, in this in.
stance, must follow that rule.
These considerations alone e8ectuslly
assignments of error. If the defendant was
dlssatisaad with the iudRmant ON the facts.