
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    MONTA L. GREEN v. CLARA FARRIN, Same v. SAMUEL OAKES.
    
      Replevin before J. P. — What judgment entry sufficient.
    
    1. After the trial of an action of replevin before a justice of the peace, the justice duly entered upon his docket, the following: “Whereupon I do find that the right of property and possession of said goods and chattels when this action was commenced was in the paintiff, and I do assess his damages in the premises 8125.00 and costs of suit herein taxed at 8--.” This, though informal, was a good and valid judgment.
    2. The defendant having filed in the court of common pleas her petition in error to reverse said judgment, the court dismissed the same on the ground that no judgment had been entered by the justice of the peace. This was erroneous. If there was error in the proceedings of the justice, the[judgment should have been reversed, and the cause retained for trial in that court. If there was^no error in the judgment of the justice, it should have been affirmed.
    3. In the other case, which was an action against the surety on a redelivery bond given in the case, the court directed the jury to find for the defendant, because there had been no judgment rendered in the replevin case by. the justice of the peace. This was erroneous.
    Error to the Common Pleas of Hamilton County.
   Smith, J.

These two cases which were heard together, though they are somewhat different in character, depend on the settlement of one question; and that is whether any judgment was rendered by Esq. Farrell, a justice of the peace in this city, in a certain action which was pending before him, in which Green was plaintiff and Clara Farrin was defendant.

The facts were these: Green broughtTan action of replevin against Mrs. Farrin to recover the possession of certain personal property, which property was all taken by the officer, and delivered to the plaintiff on the due execution of an undertaking by him, but the defendant having given a redelivery bond,the property was returned to her. The action was afterwards tried by the justice, the defendant appearing by her attorney, and witnesses were examined on the part of the plaintiff, but defendant offered no evidence, and after stating this hearing, the transcript contains the following language:

“Whereupon I do find that the right of property and possession in said goods and chattels when this action was commenced, was in the plaintiff, and I do assess his damages in the premises $125.00 and costs of suit herein taxed at $ — . ” This was on August 22, 1893, and on September 8, 1893, an execution issued thereon and was delivered to a'constable, who returned it, showing a levy on certain goods and their sale for $48.05. No exception of any kind appears to have been taken to any of these actions or proceedings.

But on December 6, 1893, Clara Farrin filed in the court of common pleas a petition in error to reverse this judgment on the ground, first, that the justice erred in not assessing the value of the property taken and delivered to her, separately from the other damages, and second, that no judgment was entered. The defendant in error moved to dismiss the petition in error on the ground that it did not conform to law, but manifestly if there was any judgment the motion should have been overruled. But the court on hearing the case rendered this judgment: “This cause coming on to be heard on the petition in error, it is found by the court that no judgment was rendered by the justice of the peace in the action of replevin before him, and in which error is claimed to have been committed, to which defendant in error, by his counsel, excepts, and that the petition in error be and is dismissed at the cost of the plaintiff in error, to all of which the plaintiff in error excepts and the defendant in error, by his counsel, excepts.”

Thereupon Green filed his petition in error in this court to reverse this judgment:

Was there a judgment rendered by the justice in the original case? Though informal and showing great negligence in not following forms at the command of every magistrate, we are of the opinion that there was. It is a settled rule that great indulgence is to be shown to the proceedings and judgments of such officials, who are not presumed to be acquainted with the technical rules of law and the practice of the higher courts, and we think that the rules of law, as shown by the adjudications of many, courts, fully justify us in holding that the finding of the justice in this case, that the right of property in, and of the possession of the goods, in controversy were at the commencement of the suit in the plaintiff, and that he assessed the damages of the plaintiff at $125, and costs taxed at $ — , was intended by the justice to be a judgment for that sum and the costs, and that it was not essential that it be followed by a statement that it was considered or adjudged by him that the plaintiff recover these sums. These conclusions seem to us to be warranted by secs. 50, 51, 53, 53a of Freeman on Judgments, and Black on Judgments, 123, where this question is fully discussed. The court of common pleas erred, in dismissing the petition in error. It was filed in time, and the plaintiff in error was entitled to raise the question whether the judgment of the justice was a valid judgment, for no exception to that was necessary to enable her to raise that question. The judgment, in our opinion, should have been affirmed, for the ruling in 7 C. 0. Rep. 303, is not applicable to this case.

We have had some doubt whether there was anything in the judgment of the common pleas prejudicial to the pain-tiff in error. He got what he asked, viz., the dismissal of the petition in error, We incline to the opinion that this left his judgment before the justice in full force — even if the common pleas did assign as the reason for the dismissal that there was no judgment to review. But it may be that it might operate to estop him from thereafter claiming that he had such a judgment, and that was the holding of the court of common pleas, of which we will hereafter speak, and this is the reason why the plaintiff in error now seeks its reversal. And as there was error in dismissing the petition in error and in not affirming it, that judgment will be reversed, with costs, and remanded to the court of common pleas for further proceedings.

The other case was one brought by Green against Oakes, the surety on the redelivery bond, to recover the amount still due on his judgment. If there was a judgment in the original case, the proof offered in this, entitled him to recover. But the trial judge in this case, on the journal entry of the dismissal of the petition in error being produced, held that there was no judgment on which to predicate the right of the plaintiff to recover, and directed the jury to find for the defendant, which it did. The rights of the plaintiff in error were duly preserved by exceptions to the rulings and charge of the court and the overruling of a motion for a new trial, and by taking a bill of exceptions containing all the evidence and those rulings. We think the trial court erred in those rulings, and this judgment will also be reversed with costs and remanded for a new trial.

M. G. Heintz, for plaintiff in error.

Dan. Wilson, for defendant in error.  