Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-05-06
SUPREME COURT.
DECLsION OF CASE FILED SAIUH-
DAY. 80

DECIsIoN OF CASE FILED sAIU1-
DAY
". ". Craighead, Respondent, Is. D. C.lNartin,
appellant.
OPINION.
No action can be instituted in Justice 8 court |
except ''by the usual process or the voluntary
appearance and agreement of the parties"
(Gen. st. Oh. IS, sec. 81. In all cases not 9TH
erwise provided for the first or usual process is
a summons issued by the justice. the requisites |
of which are specifically prescribed by statute. !
(Gen. st. Oh. g. secs. 10 and ILL., Among the |
essential things which the summons must con-
tain is statement of the time and place when
and where the defendant is required to appear
before the magistrate, to answer in the action.
The designation of this time within the stat
utory limits is q,matter solely for the determi-
nation of the justice in the exercise of his judi
cial discretion one else can do it. 1t is also
expressly provided that the summons shall be
entirely filled up and have no blank either in
date or otherwise at the time of its delivery to
an officer to be executed and if it is issued
and delivered contrary to this requirement it
shall be void. (Sec. 10, supra. 1t afirmative-
ly appears from the amended return Of the
justice in this case that no return day to the
summons which was issued herein was ever de-
termined upon or designated by him,
but at the request of the plaintiff
attorney said process was issued in blank to
such day, and was delivered to said attorney in
that condition. On its return to the justice,
with the officer certificate Of service endorsed,
said blank bore the date of the I'd day of Feb
ruary, 1877. It is not shown by whom the
blank was filled, nor is it material as the fact is
undisputed, that it was not done by the JUS
tice. The summons thus issued was nullity.
No action was instituted by it, and its service
and return gave the justice no Jurisdiction
over the person of the defendant, nor any au-
thority to proceed in the action, and render
judgment. There was no appearance by the
defendant in the justices court, unless the
appeal taken by him to the district court upon
questions of law alone is to be considered es
having that effect. 1t is commended by respond
ent that in bringing that appeal, appellant
waived his right Of objection to the jurisd
ton of the justice over his person, inasmuch
as it was equivalent, in its effect, to volun-
tary appearance in the justices court; and the
correctness of this proposition is the main
question presented for determination in this
case. For the maintenance of this proposition
VIC are referred to the case of johnson vs..
Knoblaugh, IA Minnie, as an authority in point.
Decision for respondent and such seems to have
been the conclusion, the remarks of the court
in that case concerning the effect of a gen
eral appearance in connection with the
reporters statement of facts, it is not diff
ficult to see how the court was misled as to the
real point there decided. The record in that
case on file in this court, does not show that
the judgment of the justice was by default. 1t
| is silent upon the question whether the defend
ants then appeared before the justice or not.
| 1t does show, however, that upon the hearing
of the appeal in the district court, the defend
ants contested the validity Of the judgment
Of the justice, upon the sole ground of the in
| snf1iciency Of the complaint, and that was the
! only point Of the decision from which the ap-
| toll fr,f uaa in
ence to this state Of facts, and the ground upon
which the contest had in the district
court, and not to the effect of the appeal, the
suggestion was made, that by appearing gen
orally in the Actions the def endants waived
| their right to object in this court
to defect in the service of the summons, OF
the return Of service by the officer" It is OBJ.
| vious that the point now before us was not in
| the mind of the court at that time, nor was the
| question necessarily involved in the decision
! for should it be conceded that the defendants
| did not in that case waive their jurisdictiona
objection to the Judgment by invoking the
jurisdiction of the district court to determine
its validity upon the sufticiency of the com
plant alone. it isquite clear that there was M
ground upon which the objection could have
! been sustained, as the return of personal ser
! vice by the officer being in strict conformity
with the requirements of the statute gave tn
Justice complete jurisdiction over the person.
Of the defendants. The doctrine here con
tended for, then, finds no support in the cas-
cited.
was to bring before the district court for re
view the proceedings in the justice court, t.
the end that the Judgment which was rendered
therein might be annulled and set aside, be
cause for want Of jurisdiction in the justice tx
render it. Itwould seem too plain for argumen
that such an act, which in itself is u denial O.
all authority in the Justice, can not be regard
| ed as a voluntary anDearance and express rec
ignition Of his authority.
Prior to the act of March I'd, 1865, (ch. %
general laws Of 1869 our statutes, like those o
New York, before the adoption of the code pre-
vided two remedies for obtaining relief iror
an erroneous judgment of justice OF tn
peace. The was by certiorari, the othe
was by an appeal. The former was writ il
, sued out of the appellate court. and directed
the inferior court, commanding 1t to return
, full record or transcript of the proceedings bt
fore it complained of, for inspection and exam
) nation, to the end that any and all errors Z
, law appearing upon the face of the return
might be reviewed and corrected. 1t is az
parent that the sending out of this writ wa
not an appearance of any kind IN the lowe
. court, whose proceedings were thus sought
! be made the subject of review, nor was it q
: appearance in the appellate court such {
: waived any right of objection founded upo
0 a want of jurisdiction in the inferior court,
upon any error of law committed in its exc
:, else. The whole scope and purpose Of the pr
; ceeding was to reach and remedy all errors m
;. defects of either character discoverable upo
e the face of the return, and such was the I'm
: form practice in considering the judgmen
t and proceedings of justices court, whoney
(, brought under review by means of this writ.
q The remedy by an appeal was of an entire
- different character. Its Office was simply tor
= = move case into the appellate court for tt
purpose of re-trial upon the merits. the san
s rs though it had been originally commence
d therein, and irrespective Of any errors of IA
r committed by the justice, either in assumil
q jurisdiction without lawful authority, or in
improper exercise where rightfully obtained.
:. to secure such re-trial, it was n
~ allowable to the appellant to defe
* it by interposing an objection which, if 81
n tanned, would GUST the appellate court Of
d jurisdiction, hence the doctrine applicable
ID appeals of this kind that the act Of being t
appeal is general appearance in the action
"a the appellate court, and that it precludes t
=, appellant from raising any questions affecti
y the jurisdiction of the inferior court.
l. Bormun VS.. Fitzpatrick, adv. ETC., II Wis.
v Low We. Stringham, II Wis. 222.
lie Shaw & Morehouse VS.. Morse Gibbs, Mic
TT II.
d Malm vs.. Clark, 2 Hal. 657.
- Wood ct al. VS.. Randall, Hail. 264.
- In the change of practice which was effect
. by the act of March ed, 1865, while this lat
= remedy was substantially retained in the p
g vision allowing an appeal upon questions
e. fact, there was substituted for the remedy
in certiorari that Of an appeal upon questions
as law alone, which was designated to serve
n same purpose and fulfill the like Office.
n Williams VS.. Bigelow, How, Pr. R., So.
- Spy VS.. Reynolds, 65, N. Y, 179.
W The appeal before us being of this lat
40 character, must be treated as having the Sal
< scope, purpose and effect of the former rene
g. by certiorari It appears before the appel;
ID court for consideration and review all errors
!. law inrsdi cfional Or nther1Eise annsrenk mn