
    Perry, Adm’r, v. McKinzie and another.
    In appeals, the parties stand as they did before the justice, not as appellant and appellee, but as plaintiff* and defendant.
    Objection cannot bo heard in the District Court to the service of the process of the Justice’s Court; nor can the defendant set up any defense that does not go tó tho merits of tho action.
    Much indulgence is extended to the proceedings of Justices’Courts; and if they have not ■ operated as an injury, they will be sustained. (Note 31.)
    Appeal from Colorado.
    
      llivers, for appellant.
    
      Wilson 8? Quinan, for appellee.
   Lipscomb, J.

This suit was commenced in a Justice’s Court on a note giveu by tiie appellees to tho appellant. The justice gave judgment for tho plaintiff, and the case was taken by appeal to tiie District Court. The proceedings iu tiie District Court are not easily to be understood. It appears that the appeal was dismissed and costs giveu against tiie appellee- Now, if the parties stood as appellauts and appellee in tiie court, it would appear that tiie defendants were tiie appellants, and tiie plaintiff (who had obtained the judgment in the Justice’s Court) appellee, and the defendants had appealed from that judgment. Then it would he an anomaly in jurisprudence to dismiss the appeal and tax the party appellee with costs of an appeal that had been taken’ against him. This, however, can be seen from the subsequent proceedings to have been an awkward and an erroneous entry made by the clerk. In cases of appeal from a justice’s judgment, the parties stand not as appellant and appellee, hut as plaintiff and defendant, precisely in the same situation that they stood in the Justice’s Court; and the case should have been so docketed. It is a matter of surprise that the District Judge should have permitted the records to have presented, so mneli irregularity and. confusion. The 1,’fi of exceptions alone in this ease can afford us any knowledge of what was done, intended to be done, and tho «'rounds on which the judge acted. It. scene t >• point tlie judge wished to get at in the case, was the defective sendee of die summons issued from the Justice’s Court. It appears to have been served lu-dio oiüoer by i'eaOing it. to them. If the judge was of the opinion tliai tin's object am was fatal to the suit in the District. Court, he could have order > Í die suit, to lie dismissed at tlie cost of the plaintiff, without presenting- the absurdity that is presented in the record. .The terms appellants and appellee should not have found a place on his record. The case should have, been docketed as plaintiff and defendants, as an original suit, and tried da novo under the statute. And notwithstanding (lie awkwardness of the entries, we mud consider it here, as dismissed by the court below because of tlie want of service on the defendants of the justice’s citation or summons, and proceed to inquire vh-ther (lie court below erred in dismissing tho suit. The case, went into (he Did riel Court by an appeal froni the Justice’s Court; and our statute is explicit, ihaf on such appeals the trial must he da novo. (Acts of 1846, 376, m-c. 56.) It is conclusivo that after tlie. cause came into tlie District Court, it was to be tried without regard to the judgment below; and tlie. defendant could not lake, any exception to a defect in tlie service. lie was before the court, and lie could only set, up as a defense matters that went to the merits of the action. Tho service, defective as it was, liad tlie effect to bring him into court, where his rights could be. tried. And we believe that lie could not (lien take any objection to the regularity of tho citation. Much indulgence is extended to the proceedings before a justice of the peace; and if the proceedings have not operated as aii injury, they will be sustained. And this is well provided against by tlie appeal being tried da novo.

Note 31.—Clay v. Clay, 7 T., 250, Wahrenbergor v. Horan, 18 T., 57; Howerton v. Luckie, 18 T., 237; Aycock v Williams, 18 T., 392; Davis v. Pinckney, 20 T., 310; Doyle v. Glasscock, 24 T., 200.

Judgment reversed.  