
    James M. Lyles v. Richard Barnes.
    1. Practice : appeal : writ op error. — An appeal is a process of civil law origin, and removes a cause entirely, subjecting the facts and law to review and retrial. A writ of error is of common law origin, and removes nothing for examination, but the law. Wiscwl v. Damchy, 3 Dallas R. 327.
    2. County court: practice: appeals. — On appeals from the County to the Circuit Court in civil cases, the trial in the Circuit Court is not “ de novo ” on the merits, but upon the record of the County Court.
    Error to tbe Circuit Court of Smitb county. Hon. E. G. Henry, judge.
    
      Harper and Blackwell, for plaintiff in error.
    
      Bichard Cooper, W. H. and T. J. Ha/rdy, for defendant in error.
   HARRIS, J.,

delivered tbe opinion of tbe court.

This is an appeal from tbe County Court of Smitb County to tbe Circuit Court, and a writ of error from tbe Circuit Court to tbis court.

A judgment for plaintiff, and appellant here, was rendered in the County Court below, and an appeal taken from that judgment to tbe Circuit Court. On tbe trial of tbe cause in tbe Circuit Court, the plamtiiff in error here, moved to try tbe cause upon tbe record, as suit from tbe court below, which tbe Circuit Court refused, and proceeded to try tbe same on its merits de novo.

Tbe defendant in attachment then moved to quash tbe attachment, because it was sued out before a deputy clerk, whose appointment bad not been approved by the court, or the judge thereof in vacation, as required by tbe statute.

Upon proof of tbis fact, tbe Circuit Court quashed tbe attachment, and'rendered judgment against tbe plaintiff in attachment, for costs, and tbe cause is brought here on writ of error. Tbe question presented for our decision is, whether, under tbe provisions of the county court law, section 24, page 78, Session acts of 1865, an “appeal” from tbe judgment or decree of that court to tbe Circuit Court, entitles the parties to a trial de novo, on the merits; or whether it is to be regarded as are appeals to the High Court of Errors and Appeals, under our system.

In the case of Wiscart v. Danchy, 3 Dallas, 327, Chief-Justice Ellsworth says, “ an appeal is a process of civil law origin, and removes a cause entirely, subjecting the fact, as well as the law, to review and retrial; while a writ of error is a process of common law origin, and removes nothing for examination but the law.” Story, J., 1 Gallison’s R., pages 12, 13; Marshall, C. J., Pennington v. Coxe, 2 Cranch, 61; Yeaton v. the United States, 5 Cranch, 283; 1 Brown’s Civil Law, page 945; 1 Br. Parl. Cas. 70, 590.

Does the statute in question, creating the County Court and providing for the revision of its judgments and decrees, observe this technical distinction ?

In the second section of the act, providing for “appeals” and certiorari from justices’ courts, special provision is made for a trial “ de novo, ” “ and by the same laws applicable to such cases in the courts appealed from.” It is evident, from the language here used, that the legislature did not understand the granting of the process of “ appeal” as importing itself a trial de novo upon the law and facts of the case, or else they would not have been so particular as to insert this language.

But again, in section 19, in making provision for the revision of the judgments of county courts, in criminal cases, they provide for an “appeal therefrom to the next term of the Circuit Court of the county, without bill of exceptions, writ of error, or supersedeas, upon giving bond,” etc. * * * * “ as provided by law in other respects, for appeals in criminal cases from the Gvrcuit Court to the High Court of Errors and Appeals of this State,” * * * and said cause shall be proceeded with in said Circuit Court, as other cases therein, “ tpon the transcript of the record thereof, cmd charges therein contained, but no such ‘ appeal ’ shall be granted from said County Court when the same has been tried therein by a jury.”

In the first place, it is evident that in this section they did not intend to use the word appeals in its technical sense, because they provide for the cvppeal, without bill of exceptions and without writ of error, neither of which are applicable to technical appeals, which remove the whole cause, upon both the law and facts, for a trial de novo y and second, because the act further uses the word a/ppeals as synonymous with writ of error, in this immediate connection, where it says, “ upon giving bond,” etc. * * * “ as provided by law in other respects for appeals in criminal cases from the Gi/reuit Gowrb to the High Court of Errors and Appeals of this State.” Our law does not provide for appeals, technically such, in criminal cases from the Gi/reuit Gourt to the High Court; but provides only for writs of error, and writs of error bonds.

And third, because it is clear that this section intended to confine the Circuit Court to a trial, “ upon the transcript of the record thereof, and charges therein contained,” in analogy to proceedings of a similar character in the High Court of Errors and Appeals.

It seems obvious, therefore, that the legislature did not mean to use the word appeal here in its technical sense, or in other words to direct a trial de novo on the merits, as provided in section 2. To give the word such a construction here would wholly defeat the object in view, and render this section 19 repugnant.

Section 24, which contains the special provision for “ appeals ” in civil cases, now under consideration, affords evidence equally conclusive, that the word “ appealsf as used in this act, was not designed by the legislature to be used in its original, technical sense, but in a more general sense, as including or embracing proceedings by writ of error or certiorari. See Eurrill’s Law Diet., title “Appeal.”

Section 24 provides that “ either party aggrieved by the judgment or decree of the court may appeal,” etc. * * * Bond and security * * * to be on like terms and conditions as appeals in like cases from the Gireuit Gov/ri and Chancery Court to the High Court of Errors and Appeals.”

There is no provision by our law by which causes may be taken by “ appeal ” from the Circuit Court to the High Court; but appeals are allowed in chancery causes; not, however, appeals in the technical sense, but a rehearing upon the case as presented to the court below.

It was therefore error for the Circuit Court to try the case cle novo on the merits; but it should have confined itself to the case presented l>y the record ~before it.

It follows that the investigation de novo, as to the appointment and qualification of the ofiicer before whom the attachment was sued out, was erroneous, and that the judgment of the County Court should have been affirmed.

This court, proceeding to render the judgment which should have been rendered in the Circuit Court, orders that the judgment of the Circuit Court be reversed, and that judgment be entered here, affirming the judgment of the County Court in favor of the plaintiff in attachment, with damages.  