
    Seymour vs. Judd.
    An appeal from a judgment rendered by a justice of the peace is a nullity, unless allowed by the proper officer within ten days after the judgment is rendered.
    And where the defect is not cured by the appearance of the party against whom the appeal is brought, a court of common pleas acquires no jurisdiction to proceed with the cause or to render a judgment therein, although the justice on whom the appeal is served makes a return thereto.
    Accordingly, where a justice of the peace rendered a judgment in favor of the plaintiff, in a suit commenced by short summons, and the defendant after the expiration of ten days procured an appeal to be allowed and served on the justice,; who made his return thereto, and (the plaintiff not having appeared on the appeal,) the common pleas reversed the judgment and gave judgment for costs against the'plaintiff: held, that such judgment was void, and that no action would lie against the person who had become answerable for costs on the commencement of the suit before the justice.
    Where preliminary proceedings provided by statute are in the nature of process to bring a party into court, the essential requisites of the statute must be complied with; otherwise no jurisdiction of the person is gained. Per Gardiner, J.
    An appearance to a void appeal, for the purpose merely of moving to set it aside, does not cure the defect. So held in this case, where the respondent moved to quash the appeal, and the motion was denied.
    Un error from the supreme court. Seymour sued Judd, in a justice’s court of the county of Madison, upon an instrument executed by the defendant as security for costs, in a suit commenced by short summons before a justice, against Seymour in favor of one Dewey. Seymour recovered judgment in the justice’s court for $64,32, damages, and costs. Judd appealed to the common pleas, and on the trial in that court it was proved that Dewey, a non-resident of Madison county, by Judd as his agent, in 1842, applied to John Hill, Esq. a justice of the peace of that county, for a short summons against Seymour; that on such application Judd on behalf of Dewey, executed the undertaking as security for costs, &c., on which the present action •was brought; that the justice issued the short summons, and that in the suit so commenced, he, on the 18th of November, 1842, rendered judgment against Seymour for $43,70 damages and $3,06 costs ; that Seymour appealed from that judgment to the common pleas, but the appeal was not allowed by the proper officer until the 12th of December following, on which day the allowance, together with the necessary affidavit and bond, were served on the said justice; that said justice made his return to such appeal and caused it to be filed with the county clerk; that at a term of the court of common pleas held in February, 1843, the judgment so appealed from was reversed on the appellant’s motion, and on reading due proof of notice of trial, there being no appearance on the part of Dewey ; and that on such reversal Seymour recovered against Dewey the sum of $50,28, for his costs and charges in bringing and prosecuting the appeal. It was further proved that in October, 1843, Dewey made a motion in the common pleas to set aside such judgment of reversal and to quash the appeal for irregularity, which motion was denied with costs.
    The evidence having closed, the court of common pleas non-suited the plaintiff on the ground, that inasmuch as the afores tid appeal had not been allowed within ten days after the rendition of the judgment of the justice, the judgment of reversal and for costs was void. The plaintiff excepted and brought error to the supreme court, where the judgment of the common pleas was affirmed. The plaintiff then brought error to this court.
    
      
      Wm. J. Haugh, for plaintiff in error,
    insisted that* the appeal, although not allowed within ten days after the rendition of the judgment, was not void. It was a mere irregularity which was cured by the return of the justice and the proceedings in the cause. He cited 1 R. S. 258, 259, 260, relating to appeals from justices’ judgments ; Ex parte Ostrander, (1 Denio, 679;) Dolphus v. Frosch, (5 Hill, 493;) Van Deusen v. Hayward, (17 Wend. 67;) The People v. Erie C. P. (6 Wend. 549;) The People v. Rensselaer C. P. (11 id. 174.)
    
      J. G. Stower, for defendant in error,
    cited Latham v. Edgerton, (9 Cow. 229; 4 id. 81 ; 5 id. 33, 236; 6 id. 61, 69, 585, 592, 593 ; 7 id. 468; 1 Wend. 282; 4 id. 203; 1 Denio, 679.)
   Gardiner, J.

In this case the judgment was rendered by the justice on the 18th of November. The affidavit was not presented to the officer, nor the appeal allowed until the 12th of December, twenty-five days subsequent to the' entry of the judgment. In Ex parte Ostrander, (1 Denio, 680,) it was held that the allowance must be made within ten days, and that the failure to make the affidavit and obtain the allowance within that period, was ground sufficient to dismiss the appeal, and one against which the court, even if disposed, could not relieve. (2 R. S. 258, § 187.)1

It has been repeatedly held, that courts have no dispensing power, even in matters of practice, where the legislature have spoken. (Bleeker v. Wiseburn, 5 Wend. 136; 7 Paige’s R. 247; 9 id. 574 ; 6 How. 113; 4 Wend. R. 204.) The power will hardly be claimed in behalf of a judge at chambers. The substance of the statutory provisions is that a judge at chambers may direct a new trial if application is made within ten days after the judgment, and the proper affidavit presented. (§ 187.) He can no more enlarge the time than he can legislate in any other matter. Here twenty-five days had elapsed before the affidavit was presented. The allocatur was therefore a nullity. The justice was under no obligation to obey it. This was conceded on the argument. But a mandate for a new trial, granted by authoi ity of a statute, which the court tc whom it is addressed may disregard at pleasure, is a legal ab-, surdity. The question then is, had the common pleas jurisdie-' tion of the cause and the parties, which authorized them to proceed to a new trial, without the allocatur of the officer specially authorized by statute to grant it ?

If the preliminary proceedings are in the nature of process, to bring the matter before the court of common pleas, as suggested by Judge Bronson, in Van Deuzen v. Hayward, (17 Wend. 67,) it is clear that no jurisdiction was acquired of the person of the appellee. If in place of the service of process upon the appellee, we are to substitute the constructive notice, arising from the proceedings under the statute, its requirement must be followed in every essential particular. (1 Denio, 431.) This is the plain dictate of justice, as well as a fundamental principle of law. The 191st section accordingly declares, that “no appeal shall be valid, or have any effect, unless the party appealing shall serve the affidavit, and allowance of appeal, deliver a bond, &c. as hereinbefore directed.” The 194th section provides, “that the justice, within ten days after any appeal shall have been duly made, shall make a return, stating among other things, the time when the affidavit, allowance of appeal, <fcc. were served on him.” The service required by the last section, necessarily implies the existence of the things served, and also their necessity to an effectual appeal, or the legislature would not have been guilty of the absurdity of requiring the time to be stated.

The 201st section declares, that “ on the return being filed, the common pleas shall be possessed of the cause.” This means a return, in pursuance of the previous sections. It must be a return consequent upon an appeal duly made, to give the court jurisdiction of the parties. (1 Denio, 421.) No doubt the common pleas, upon the filing of a defective return, acquires jurisdiction of the cause sub modo. They can entertain a motion to dismiss the appeal—to amend the bond, (section 204,) or they may look into the return, and upon their own motion quash the proceedings. So the appellee by a voluntary appearance may waive all objections to proceedings, however deiective, and proceed to trial upon a return of the pleadings before the justice, upon which there has been no judgment. The court would have jurisdiction of the subject matter, and the consent of the appellee, under such circumstances, would give jurisdiction of the person. In like manner, the proceedings upon attachment before a justice, may be so defective, as to give the magistrate no jurisdiction of the person of the defendant ; yet if the latter appears and contests the suit upon the merits, a valid judgment may be rendered. This is the full extent to which the decisions have been carried. The People v. Erie Com. Pleas, ( 6 Wend. 549 ;) Van Deuzen v. Hayward, (17 id. 70 ;) 4 McCord, 80.

In this case, as we have seen, there was no allowance of the appeal. The return of the justice according to the fact, would have shown the defect. Nor has the appellee waived the irregularity. He was not in the state from the time of the commencement of the suit before the justice, until after judgment was obtained against him upon the appeal. At a subsequent term, he moved the common pleas to set aside the judgment, upon the ground of irregularity. His appearance for that purpose was no waiver, but the reverse of it. (U. States v. Curry, 6 How. 113.)

The appellee has had no benefit of the appeal, no -notice, actual or constructive, of its existence, nor any opportunity of being heard in relation to it. Without a violation of first principles, he cannot be concluded by the judgment.

There is still less reason for upholding it. against the defendant in this cause, who is merely a surety. He was discharged by the failure of the appellant to procure an allowance of the appeal according to the statute. In all matters occurring in the orderly conduct of the suit, after a lawful appeal as to which the common pleas could afford relief, the surety would be bound undoubtedly, by the stipulations and acts of his principal. But beyond this, and in relation to facts necessary to confer jurisdiction, the principal had no authority to bind him; for this would be to extend his undertaking, beyond “ the act in such case provided,” to which it was limited by the terms of his obr ligation. It is unnecessary to decide this question, as it is clear that the principal himself is not concluded by the judgment.

The judgment of the common pleas and supreme court should be affirmed.

Judgment affirmed. 
      
       When the time for taking an appeal is fixed by statute, the court has no power to enlarge it, even on cause shown. Wait v. Van Allen, 22 N. Y. 319. Cotes v. Carroll, 28 How. Pr. 436 ; s. c. 29 Ibid. 326. And this rule has not been changed by the Code. Sherwood v. Pratt, 11 Abb. Pr. (N. S.) 115.
     