
    Charles Godfred v. Lewis Godfred.
    1. Where, m a civil action, before a justice of the peace, the return of the constable fails to show legal service of the writ of summons on the defendant, but such defendant, before the trial of the action, files with the justice a bill of particulars of his set-off in the action, this constitutes a voluntary appearance, and confers on the justice jurisdiction of the person of defendant.
    '2. Upon petition in error to reverse the judgment rendered in such action against the defendant, for want of jurisdiction of his person, such voluntary appearance can only be shown by a transcript of the proceedings and judgment from the justice’s docket. The record can not be aided or varied by parol evidence.
    3. Where defendant in error, by way of answer to the petition, alleges such voluntary appearance, and avers that the transcript upon which plaintiff has assigned error is imperfect and defective in failing to show the filing of such bill of particulars, such averments may be regarded as a ' suggestion of diminution of record, and would authorize the court to order the justice to furnish a complete and perfect transcript of the proceedings and judgment before him in the action.
    .4. Where, without such order, or compulsory process, the justice, during the pendency of the proceedings in error, furnishes a complete and perfect transcript of the proceedings had before him in the action, duly certified to be a true copy from his docket, and upon the hearing of the petition in error, such transcript is prdduced by the defendant, and submitted to the court without objection on the part of the plaintiff, the case may properly be heard upon such amended transcriot and determined accordingly. "
    Error to the Court of Common Pleas of Seneca county. Reserved in the District Court.
    On the 5th of June, 1872, the plaintiff in error filed his ■petition in error in- the Court of Common Pleas of Seneca ■jcounty, seeking the reversal of a judgment which had been rendered against him and in favor of defendant in error, on the 14th of March, 1872, for $217 and costs, by one R. J. Carey, a justice of the peace of Reed township in said county. The transcript of the proceedings before the justice, upon which errors were assigned, showed that the defendant in error, on the 4th day of March, 1872, filed with the justice his bill of particulars, being various items of book account against the plaintiff in error, amounting to-$254.50, with a credit thereon of $37.50, leaving a balance of $217, for which he asked judgment. On this claim a. summons was duly issued March 4, 1872, for the appearance of the,defendant, on the 14th day of the same month,, at 10 o’clock a. m., which was in due time returned by the-proper officer, indorsed: “ Received this writ March 4,1872; served by leaving a certified copy of the original writ with the defendant’s wife (he being absent), this 5th day of March, 1872.” Defendant failed to appear at the time set for trial, and the justice, after waiting more than an hour,, proceeded to trial, examined the plaintiff’s witnesses, and rendered judgment in his favor for the amount of his claim, and costs.
    Plaintiff in error asked a reversal of this judgment on the ground that the record and proceedings show that the justice of the peace acquired no jurisdiction of his person in the case, either by legal service of summons, or by waiver thereof indorsed on said summons, by his voluntary appearance at any stage of the action, or in any other way whatever. The defendant in error answered this petition,, alleging in substance that the plaintiff voluntarily appeared in the action tried before the justice, by filing with him, on the day preceding the trial, to wit, on the 13th of March, 1872, a bill of particulars of his set-offs in said action, and that the transcript attached to plaintiff’s petition in error is defective and imperfect, in failing to state and show that-such bill of particulars was so filed by plaintiff in error. Plaintiff, by reply, denied these allegations.
    Erom a bill of exceptions taken on the hearing of the petition in error it appears that the case was tried on submission to the court, without a jury; and each of the parties, without objection, offered parol evidence tending to-maintain, on their respective parts, the issue joined between them as to the filing of a bill of particulars by plaintiff in-error, on the 13th of March, 1872, as a set-off in the action then pending between the parties. Defendant in error also produced, and, without objection, offered in evidence a-transcript of the proceedings and judgment then under review, taken from the justice’s docket, as amended after the case at bar was commenced, and duly certified by the justice to be a full and true copy from his docket of the proceedings had by and before him in the case. This transcript was similar to the one on which plaintiff in error had made his assignments of error, except that it contains the farther statement that on “ March 13th, 1872, defendant filed his bill of offsets for $67 in the words and figures following, to witand then proceeds to give a full copy of the items in the bill.
    TJpon the pleadings and evidence the court found that the plaintiff in error had appeared to the action mentioned and referred to in his petition in error, of the said defendant against him, before the- said justice, and filed his bill of particulars of his offset in said action, and thereupon affirmed the judgment of the justice of the peace. To reverse this judgment of affirmance plaintiff'in error filed his petition in error in the district court, where the case was reserved for the decision of the supreme court.
    
      W. P. Noble, for plaintiff in error.
    
      John McCauley, for defendant in error.
   Scott, J.

The bill of exceptions, which is made part of the record in this case, purports to contain all the evidence offered by the parties on the hearing of the petition in error in the court of common pleas. Defendant in error read in evidence the deposition of one Orwig, and also examined as a witness the justice of the peace before whom the original action was tried. This seems to have been done without objection; and if the court could properly • determine the question as to the existence of the error which the plaintiff alleged was apparent on the record, by such parol evidence, dehors the record, we think its finding was fully warranted by this evidence, which, if true, clearly showed that plaintiff in error had appeared in the action, before the justice, by filing, or causing to be filed, a bill of particulars of his set-off in the action. But this parol evidence was wholly improper. A duly certified transcript of the record, which the law required the justice to make, was the only competent evidence of what occurred or was done before him during the pendency of the action. Its statements as to all matters which by law are required to be recorded, could neither be varied, amplified, or contradicted by parol evidence. The statute requires every justice of the peace to keep a docket, on which must be entered by him, in all civil cases, among other things : “ The filing of the bill of particulars of either party, and nature thereof, and when not of too great length, the same shall be entered at length on the docket.” (Sec. 208 of the act •of the civil jurisdiction of justices of the peace. S. & C. 805.) Whether the plaintiff in error had appeared in the action before the justice, by filing a bill of particulars of his set-off, was a question of fact to be determined by an inspection of the record, and the parties certainly waived none of their legal rights by submitting this question to the court without the intervention of a jury. No other tribunal had jurisdiction to pass upon it.

But the justice’s transcript, upon which error was assigned, contained no statement that any bill of particulars had been filed by the defendant in that action; and it also failed to show that the said' defendant had been legally served with a summons in the case, or had voluntarily appeared in the action.

The defendant in error answered the plaintiff’s petition, by averring that the plaintiff had in fact appeared in the action below, by filing a bill of particulars of his set-off therein; and that the alleged transcript of the proceedings ■before the justice was defective in omitting to state that fact. Without any formal answer in the case, it would have been the clear right of the defendant in error to have suggested a diminution of record, and thereupon to have procured an order on the justice to‘furnish a complete and perfect transcript of the proceedings had before him in the premises. Section 530 of the code of civil procedure provides as follows: “Writs of error and certiorari to reverse, vacate, and modify judgments or final orders in civil cases, are abolished; but courts shall have the same power to compel, complete and perfect transcripts of the proceedings containing the judgment or final order sought to be reversed, to be furnished, as they heretofore had under writs of error and certiorari.”

The averment of a defective transcript in this case, though unnecessarily made by way of formal answer, may well be regarded as a suggestion of diminutim^uf record, ■and would have entitled the defendant to denfflMgfein order on the justice to send up a complete and perfecFtranscript of the proceedings containing the judgment sought to be .reversed, and with special reference to the alleged omission. But without pro curing such order, the defendant, on the hearing of the case, produced a transcript from the justice’s docket, duly certified by him to be a full and true copy from his docket of the proceedings had before him in the action, which contained a statement of the fact that the plaintiff in error had filed with him, on the day preceding the trial of the case, a bill of particulars of his offsets in the action amounting to $67, and giving a full copy of the items thereof.

This amended or full transcript was, without objection, submitted to the court by the defendant. It might, perhaps, have been objected to because it had not been furnished under a previous order of the court. Had such objection been made, the proper order would, no doubt, have been obtained. But we think it was competent for the •plaintiff in error to waive the issuing of such order, and to consent that the transcript produced by defendant should be regarded as if sent up by the j ustice in obedience to proper process; and that his failure to interpose-any objection must be regarded as such waiver and consent. This complete and perfect transcript shows conclusively, as between these parties, that the plaintiff in error appeared to the action before the justice, by filing his bill of particulars therein, and that the judgment complained of was therefore rendered in the exercise of full jurisdiction..

Judgment of the court of common pleas affirmed.  