
    Clagget vs. Blanchard.
    Appeal from a J. P.
    
    [Messrs. Fry & Page for plaintiff: Mr. Pirtle for defendant.]
    From the Circuit Court for Jefferson County.
    
      April 22.
    The proceedings on the warrant, and on the appeal, and questions.
   Judge Marshall

delivered the Opinion of the Court.

Blanchard sued out a warrant from a Justice of the Peace, against Clagget and Kimmel, to answer “ in a plea of debt for fifty dollars, due by acceptance for hardware.” The warrant having been executed on Clagget, and returned as to Kimmel ‘not found,’ the Justice rendered judgment against the ‘defendants,’for fifty dollars debt, and one dollar the cost; from which Clagget appealed to the Circuit Court; and in that Court, the jury having found a verdict for the plaintiff for fifty four dollars and fifty cents, a judgment was rendered against the ‘defendant’ for that sum with costs. ' To reverse which judgment, Clagget. prosecutes this writ of error.

One or more of several persons against whom a J. P. has rendered a judg't, may appeal, with the same effect as though all had united in the appea;s; and though that the statue is, that judg't may be rendered between all those who were parties to the judgement of the justice, it should not be so construed as to authorize the Circuit Court to proceed against a party who has not appeared, nor been cited to appear, either before the justice, or in that court. There is no law to summons a party in the Circuit Court, on an appeal from a J. P., who was neither summoned, nor appeared, before him.

As the record does not contain the evidence nor any history of the trial, and as it is clear that a case might have been made out in proof, which would have authorized a recovery to any amount of which the Court had jurisdiction in this proceeding — the only questions which we consider as properly arising on the record and assignment of errors, are — first: whether the Court erred in rendering judgment against Clagget alone when the judgment of the magistrate purports' to be against the defendants; and second — whether the Court had jurisdiction to render judgment for more than fifty dollars, in this proceeding.

First. The first of these questions is made under the third section of the act of 1831, regulating appeals from justices, (1 Stat. Law, 904,) which provides that one or more of several persons against whom a judgment is ill** it f * . rendered by a justice, may appeal; that such appeal by one, shall'place the cause for trial in the Court of ApPea^s> as as ^ taken by all, and that such Court shall, in all respects, proceed therein, “and render judgment between all those who were parties to the judgment the justice.”

We consider it entirely certain, that the Legislature did not intend to require or authorize the Circuit Court, upon an appeal by one defendant who had been served with the iustice’s warrant, to try the case and give judgment aga'nst another, who had neither been served with the warrant, nor appeared before the justice, nor united in theaPPeal! nor appeared in the Circuit Court, nor been summoned to do so; and neither this, nor any other statute, nor any known practice, authorizes that 0ourt to issue a summons or other process against a person thus situated. It would seem, therefore, that he , , , . . . , T , 7 . should not be considered as a party to the appeal in the Circuit Court, so as to authorize a judgment in that Court, against him, even if he had been named as one of the defendants against whom the judgment of the justice was intended to be rendered.

A judg’t of a J. P. against a party on whom the war rant was not served, and who did not appear, is void; but he may appeal,&reverse it, without subjecting himself to a valid judg’t in. the Circ’t Court.

The word ‘deft,' in a judg't, embraces all those who,by the record are liable to the judg’t.

Upon the trial of an appeal where the warrant was for fifty dollars ‘due by acceptance for hardware,’ the jury might give damages for the detention of the debt; and the verdict being for fifty four dollars and fifty cents, it is presumed that the excess was for interest: not that the original demand exceeded the justice’s jurisdiction, or. that a different one was proved on the trial of the appeal.

If the judgment of the justice is to be construed as including him, it was void as to him. - And although he might have made himself a party to it, or have entitled himself to be so considered, by appealing to a higher tribunal for its reversal, it would not follow that this statute intends to fix upon him the character of a party for the purpose of subjecting him to another judgment, in a proceeding of which he has no notice. And we think the statute should not be so understood. The whole judgment was brought before the Circuit Court by the appeal; but the case was to be tried between the parties, as it might have been by the justice. And if .it be admitted that the Court might have entered an abatement as to Kimmel, or should have expressly excepted him from the judgment, or reversed the judgment of the magistrate as to him, all this may be considered as in effect done by the judgment as rendered; and if it were not, we do not see that Clagget could complain of the omission.

But if all these conclusions be incorrect, still as the word ‘defendant’ used in the judgment of the Circuit Court, has been adjudged to be a collective word, which may embrace and should be understood to embrace, all the defendants, who, as the record showed, might and should be embraced in the judgment, it would follow that if, by virtue of the statute and of the appeal of Clagget, Kimmel is to be considered as a party to the trial in the Circuit Court, and subject-to the judgment thereinto be rendered, he should also be considered as embraced in the judgment against “the defendant.” And thus the ground of this alleged error would be entirely removed.

Second. As to the question of jurisdiction: the warrant shows a demand in its nature and amount certainly within the jurisdiction of the justice, and the Circuit Court had jurisdiction by the appeal, to try and render judgment for the same demand, as if the case had originated in that Court, except that a declaration and other pleadings are dispensed with. And as the jury, in a case like this, originating in the Circuit Court, might undoubtedly find damages for the detention of the principal sum, we feel bound to presume, in the absence of any statement of the evidence, that the small excess in their verdict beyond the fifty dollars demanded in the warrant, was given on this ground, and not as the value of the contract itself, or of the act or thing contracted to be done. This excess, therefore, cannot be considered as tending to show that the real cause of action was not within the jurisdiction of the justice, or that a different cause of action Was tried in the Circuit Court, or that that Court had not jurisdiction to render the judgment complained of.

If the verdict had been for fifty dollars, the sum demanded in the warrant, and four dollars and fifty cents damages for the detention thereof, there could have been no difficulty as to the jurisdiction of the Court. So that indulging, as we must do, all reasonable presumptions in favor of the judgment, the objection resolves itself into a question as to the form and effect of the verdict. And the verdict being substantially good, and such as we must presume was authorized by the evidence, the judgment is therefore affirmed.  