
    Myers v. Woolfolk.
    1. An affidavit made by an appellant in a Justice’s Court in these words, viz: “That he did not appeal, but because he was injured by the judgment of the Justice,” is good in substance.
    2. In the proceedings of Justices’ Courts, substance and not form is regarded.
    3. A warrant was issued under the 7th section of the act regulating Jusliees’ Courts, and served, not by arresting the body, but by reading as in case of an ordinary summons, and on the non-appearance of the defendant a judgment by default was rendered against him. Held, that under such service the defendant might appear and defend : that he had all the benefit of the process the law contemplated: that the arrest of the body is designed for the benefit of the plaintiff, which he may waive ; and that if the defendant, after the judgment by default, take the cause to the Circuit Court, he is precluded from any objections to the regularity of the proceedings, the law requiring that on appeals from Justices’Courts, a trial de novo shall he had in the Circuit Court on the merits, without regard to the irregularities and informalities of the Justice.
    4. An affidavit is essential to give to the Circuit Court jurisdiction of an appeal from a Justices’ Court.
    6. Where it appears that there is an appeal from a Justices’ Court, regularly in the Circuit Court, the Court must try it, unless there was no legal cause before the Justice.
   M’Girk, C. J.,

delivered the opinion of the Court.

This was an action commenced by Myers v. Woolfolk before a Justice of the Peace. The plaintiff, upon affidavit, obtained a warrant under the provisions of the 7th section of an “Act establishing Justices’ Courts, and regulating the collection of small debts,” Revised Code, p. 474. The Constable instead of arresting the defendant, and bringing him forthwith before the Justice, read the wairant to the defendant in the mode pointed out for serving a summons, and made his return of service as directed in the case of a summons, the defendant having failed to appear, on the return of the warrant, judgment by default was entered up against him. Five days after the judgment, the defendant moved for a new trial, which was refused; and four days thereafter he prayed an appeal, which was granted. In taking his appeal to the Circuit Court, the defendant instead of following the form of affidavit given in the statute, made oath that he did not appeal, but because he was aggrieved by the judgment of the Justice.” In the Circuit Court, Myers moved to dismiss the appeal, for the insufficiency of the affidavit, and Woolfolk moved to set aside the judgment of the Justice and to dismiss the appeal, because there was no sufficient service of the warrant, and because judgment by default was rendered against the defendant by the Justice before he had jurisdiction of said defendant. The Circuit Court reversed the judgment of the Justice and dismissed the appeal, thereby indirectly overruling the objection taken to the sufficiency of the affidavit. The opinion of the Circuit Court in sustaining the motions made by Woolfolk, and in overruling those made by Myers, was excepted to, and its judgment thereon appealed from to this Court.

For the plaintiff in error it is contended by Mr. Porter, that the Circuit Court erred,

First. In not dismissing the appeal for the insufficiency of the affidavit; and

Second. In reversing the judgment of the Justice for want of sufficient service of the warrant, and dismissing the cause.

The form given in the statute is clear and concise, and it is certainly best to adhere to it; we think, however, the affidavit is good in substance, and in proceedings before Justices of the Peace, substance only and not form is to be regarded. There is, therefore, no error in the judgment of the Circuit Court on-this point.

On the second point we hold the law is with Myers. A warrant or capias is intended by tire law to effect two objects, the first is to give the party notice of the suit, so that he may not have his right adjudicated on, without having an opportunity to defend himself; the second object is, that his body may be secured by being kept in custody or by giving bail to answer the plaintiff’s execution, if he shall recover judgment ; this latter benefit is one entirely for the benefit of the plaintiff. The defendant had the benefit of the process so far as the writ was intended for his benefit. He might well under this service have claimed the right to appear and defend himself. If he did not do so, he ought not now to be allowed to say he never had an opportunity to defend or to be heard. When he brought the cause to the Circuit Court he could not then complain of the want pf an opportunity to defend. The law requires that there shall be a trial da novo on the merits, in the Circuit Court when an appeal conies there, disregarding all irregularity and informality which took place before the Justice. See the act of the General Assembly of 1831 on this subject, which says (sess. act 48, section 3) that when an ajipeal shall be taken from the judgment of a Justice of the Peace to the Circuit Court, no objections as to the proceedings of such Justice shall be valid, but the Court shall proceed to try such cause on its merits.

If in this case there had been no affidavit, there would not be any appeal lawfully In Court, that being essential to constitute the appeal.

Rut when the appeal once is found to exist in Court, the Court must try it, unless indeed there should be a case where no legal cause was ever before the Justice or where the process did not run in the name of the State. For these reasons we are of opinion the judgment of the Court below is to be reversed. The cause is remanded with instructions to that Court to reinstate the case and proceed to trial.

Tompkins, J.,

dissenting.

In my opinion the judgment ought to he affirmed. The Justice never had any jurisdiction of the cause. The Constable returned that he had served the warrant by reading it, and the Justice enters on his docket that the defendant not appearing, judgment by default was entered against him. The case of Charless v. Marney cited by Myers’ counsel, does not support his argument. In that case (see 1 vol. Mo. Decisions, p. 537) it was decided that the summons not running in the name of the State, tile proceedings before the Justice was properly set aside, and sent the cause back to be tried in the Circuit Court; but it was not then contended that the defect in the writ deprived the Court of jurisdiction ; want of jurisdiction was one point certainly, but that point was attempted to he sustained, because it did not appear on the face of the summons that th.e sum sued for was within the Justice’s jurisdiction ; and the Court decided that it need not necessarily appear on the writ that the demand was within, the. jurisdiction of the Justice, and therefore reversed the judgment of the Circuit Court dismissing the cause. It has been since decided that if the summons do. not run in the name of the. State,, the Justice has no jurisdiction. In like manner I hold that if the defendant be not brought before the Justice, he has no jurisdiction of his person, and can give no judgment when the process is a warrant as in the case now under consideration; Myer’s counsel calls this an irregularity. When the Justice in the case of Charless and Marney gave judgment for the plaintiff, the return of the. summons being insufficient, that judgment was on that account irregular, and that irregularity might have been cured by the appearance of the party to defend before the Justice; but not so as to a delect in the summons which alone could give.him jurisdiction; in such case the proceedings are said to> be-void, not irregular. Now if a Justice can give a judgment on a return similar to that now before the Court, I ask why he cannot give one without issuing any warrant ? But.it is. said the plaintiff had a right to waive the law in his own favor requiring the body of the defendant to be brought into Court. True; but has he a right to waive the right of the defendant to be present and hear why judgment goes against him ? The Constable, it is true, returns that the defendant was summoned, and it is said he might have come ii he chose. For any thing the Justice knew, the defendant might have been sick and unable to attendbut should any one suppose the Justice was careful to inform himself on this point before he entered up his judgment, I answer that the Constable’s return on the warrant, and whatever else he might have told the Justice, are equally inadmissible evidence to prove these facts. The Constable’s duty waste return that he had taken the body of the defendant, and had him before the Justice ; or that he had not done so, and the return which he made being different, is in my opinion no evidence even that the defendant had been seen by him.. It is asked, if the Justice can rende® a judgment against an absent defendant, when the process is a summons, why not when it is a warrant ? The ready answer is, that the law has commanded the Justice of the Peace to have him present, and this answer is enough; for as his power to give judgment is given by the statute, so in giving it he must conform to the provisions of the statute; but I see a substantial reason why a judgment should not be rendered against an absent defendant when suit is commenced by warrant, independent of any legislative mandate. When the process is-a summons, the defendant is allowed' at least six days to prepare for trial ;• in that time- if he even he sick and unable to. travel, he-may employ an agent, and do other business preparatory to the management of his cause; but when the process is a, warrant, he has no time allowed to do such business, and therefore is the Constable very properly required to bring him into Court: and as every man ought to be heard before his cause is decided, I think the Justice has no right to. dispense with what the- law required him to. do in this case; but the act of Assembly concerning Justices’ Courts, passed 18th January, 1831, requires, that no objection as to., the proceedings before the Justice shall he valid. I hold that every thing done before the Justice is void, and it is as if there had been no proceedings at alland indeed it appears to me that if the Justice, be allowed to proceed on such a return as this, that the issuing of a warrant is a nullity, and the Justice might with as much propriety enter up-a judgment against the> defendant, without pretending to notify him of the plaintiff’s claim. In the rest o£' the opinion of the majority of the Court I concur.  