
    Baum vs. Tarpenny.
    Where a jury in a justice’s court have passed upon a question of fact, in respect to which there was evidence on both sides, the common pleas, on certiorari, have no right to interfere with the judgment, though they think the jury came to a wrong conclusion.
    Though a justice ought not to receive the verdict of a jury until after calling the plaintiff; yet, should he do so, it seems questionable whether the defendant could allege this for error.
    In reviewing the judgment of a justice, on certiorari, where it is shown that he had jurisdiction of the parties and subject matter, it will be intended that his proceedings were regular unless the contrary appear.
    Accordingly, the return of a justice being silent as to whether the plaintiff was called or present when the verdict of the jury was rendered ; held, no ground for reversing his judgment.
    Where the return is silent as to the matter relied on for error, the course of the party seeking to reverse the judgment is to procure an amended return.
    Error to the Onondaga common pleas. Baum sued Tarpenny before a justice in trespass for taking and carrying away a quantity of cord wood. The jury, on issue joined, found a verdict for the plaintiff for $1,88, on which the justice rendered judgment. The common pleas, on certiorari brought by the defendant, reversed the judgment on the ground, 1. That the evidence did not justify the verdict of the jury ; and 2. That it did not appear from the return of the justice that the plaintiff was either called or present when the verdict was received. The plaintiff sued out a writ of error.
    
      Noxon, Leavenworth fy Com,stock, for the plaintiff in error,
    
      A. C. Griswold, for the defendant in error.
   By the Court, Bronson, J.

There was evidence on both sides. It was plainly a case for the jury, and the judgment should not have been reversed on the ground that the common pleas differed with the jury upon the question of fact. (Noyes v. Hewitt, 18 Wend. 141.)

The justice should not receive the verdict, on a trial by jury, until after the plaintiff has been called and has appeared. (2 R. S. 244, § 110.) But if he should do so, it is very questionable whether the defendant could allege that fact for error. It is not necessary, however, to decide that question. There is nothing here but a mere omission of the justice to state in his return whether the plaintiff was called or present when the verdict was received. When the justice has jurisdiction of the parties and the subject matter, wre will intend that the proceedings were regular until the contrary appears. (See Oakley v. Van Horne, 21 Wend. 305.) The contrary doctrine would lead to mischievous consequences. The probability is, that the plaintiff in this case was both called and present when the verdict was received; and no question upon that subject being made in the affidavit which accompanied the certiorari, the justice said nothing about it in his return. But if this conjecture is not well founded, and the plaintiff was not called, the defendant should have procured an amended return, showing affirmatively that the proceedings were irregular.

The judgment of the common pleas must be reversed, and that of the justice affirmed.

Ordered accordingly.  