99

Under the latter measure, it was held that the court below must make its return of "all the testimony and proceedings, though the affidavits (as then required) conflicted only in a few particulars.' -McCafferty v. Kelly, 2 Sandf. S. C. R. 637. "Such is the provision of the Code. Where a return is made, we look only to that. We cannot look into the affidavits also. If the return here be insufficient to present the whole case, the parties must call for a further return."

In Belshaw v. Colie, 3 C. R. 184, it was held, that the justice's return must contain the whole, and not a part of the proceedings before him, and the appeal, in that case, was accordingly ordered to stand over, to give the appellant an opportunity to procure an amended return.

The court will not, however, reverse a judgment, merely because the return is defective. The party asking for a reversal must see that the facts are properly stated.-Klenck v. De Forest, 3 C. R. 185.

Where the return was insufficient for the purpose of showing the personal service of process, and there was no other evidence on that subject, a judgment, which had been entered and affirmed by the county court, was reversed by the supreme court on the ultimate appeal, and a new trial ordered.-Manning v. Johnson, 7 Barb. S. C. R. 457. This case evidences the necessity of seeing to the regularity of this important preliminary in all cases.

A further or amended return may be required, and, if necessary, compelled by the appellate court, under the provisions of sec. 362. That made should, therefore, he examined by the parties, and, should it require correction, a special application may be made upon the subject to the court above.

A justice, though out of office, is competent to make a return, under the special power for that purpose contained in sec. 361. He is compellable to do so, when he has removed to another county.-V. Peck v. Foot, 4 How. 425. If he be dead, insane, or have departed from the State, the appellate court may then examine witnesses to the facts and circumstances of the trial and judgment, and determine the appeal, as if a return had been made.-V. sec. 363.

The mode of hearing an appeal of this nature is thus prescribed by sections 364 and 365:

§ 364. If a return be made, the appeal may be brought to a hear

ing at a general term of the appellate court, upon a notice by either party, of not less than eight days. It shall be placed upon the calendar and continue thereon, without further notice, until finally disposed of; but if neither party bring it to a hearing before the end of the second term, the court shall dismiss the appeal, unless it continue the same by special order, for cause shown.

§ 365. The appeal shall be heard on the original papers; and no copy thereof need be furnished for the use of the court.

Of course, notice of trial as above, must be given in the usual form.

In Bellony v. Alexander, 1 Sandf. Sup. C. R. 734, 1 C. R. 64, the question as to how far an appeal may be heard ex parte, and of the evidence to be produced on such hearing, is fully considered; the principle followed in such cases appearing to be, that, where the appellant alone appears, he will be required to satisfy the court as to all the facts, and also, it would seem, as to the merits of the case; whilst if, on the contrary, the appellant makes default, the judgment below will be affirmed as of course. See, too, Geraghty v. Malone, 1 Sandf. Sup. C. R. 734,

1 C. R. 94.

In Whitney v. Bayard, 2 Sandf. S. C. R. 634, the court held, on the contrary, that, on the respondent's failure to appear, the appellant was entitled to reverse the judgment by default, the appeal being a mere substitute for the former certiorari to bring up the judgment for review. The latter doctrine may be considered as prevailing, but it will, of course, be a matter of necessary prudence for the appellant to be prepared with all necessary proof of his case, under any circumstances, and even when a default appears likely to be suffered.

The consequence of suffering a default of this nature may be serious. In Dorr v. Birge, 5 How. 323, 1 C. R. (N. S.) 74, it was held that the supreme court has no power to review a judgment taken in the county court by default, on an appeal of this nature. Its jurisdiction is merely appellate, and it can only review and correct the decisions of the county court, actually made after a hearing of both parties. It is clear that an application to the court below, under the powers of sec. 174, would have been the proper course under these circumstances.

The provision that, in the event of a delay in bringing on the appeal for hearing, it will be dismissed as of course, will not escape notice.

The following special rules have been made by the court of common pleas in relation to appeals of this nature-V. 7 L. O. 227, and it is probable that they may be extensively adopted by the county courts in general:

66 COURT OF COMMON PLEAS OF THE CITY AND COUNTY OF NEW YORK. 66 NEW RULES.

"The following rules, with reference to the hearing of appeals from the marine court, and from the justices' courts, have been made.

"1. If the appellant does not procure the return to be made to this court, within the time prescribed in sec. 360 of the Code of Procedure, the respondent may serve a notice in writing, requiring the same to be done within ten days thereafter, and that in default thereof, he will apply at the general Term, on the first day, for an order dismissing the appeal; and upon proof of the service of such notice, and of a non-compliance therewith, such order will be granted, unless the court grant further time therefor.

"2. If the court below shall not make the return to this court, as prescribed by the Code, the appellant may apply, by motion, to a judge at chambers to compel such return by attach

ment.

"3. If the return be made and noticed pursuant to the Code, the appeal shall be heard on written arguments and points. The appellant shall serve his arguments, or points, on the respondent or his attorney, at least five days before the commencement of the term. The respondent shall serve his answer on the appellant or his attorney, before the first day of the term. The appellant may reply thereto, and the case shall be submitted to the court, on such first day of the term for which the same shall be noticed. Only one copy of the argument and points shall be prepared, and if either party omit to serve or submit his points or arguments, as above specified, he will be deemed to have waived the right so to do.

"4. Either party may move at chambers, before the first day of the general term, on notice, that the appeal be argued orally, and on good cause being shown therefor, such motion shall be granted.

"5. The clerk shall make a separate calendar of such appeal

cases.

"6. The appellant or respondent may furnish a fair copy of the original papers for the use of the court."

These rules provide, as will be seen, a system of hearing upon written points as the rule, and of oral arguments as the exception.

The powers of the court above, in giving judgment on appeals of this nature, are thus conferred by sec. 366:

§ 366. Upon the hearing of the appeal, the appellate court shall give judgment according to the justice of the case, without regard to technical errors and defects which do not affect the merits. In giving judgment, the court may affirm or reverse the judgment of the court below, in whole or in part, and as to any or all the parties, and for errors of law or fact. If the appeal is founded on an error in fact in the proceedings, not affecting the merits of the action, and not within the knowledge of the justice, the court may determine the alleged error in fact on affidavits, and may in its discretion inquire into and determine the same upon examination of the witnesses. If the defendant failed to appear before the justice, and it is shown by the affidavits served, or otherwise, that manifest injustice has been done, and the defendant satisfactorily excuses his default, the court may in its discretion set aside or suspend judgment, and order a new trial before the same or any other justice, at such time and place, and on such terms, as the court may deem proper. The parties must appear before the justice according to the order of the court, and the same proceedings must thereupon be had in the action, as on the return of a summons personally served.

It will be seen that these powers are of the most extensive possible nature, and involve a complete re-trial of the cause, with a total disregard of technicalities in all cases, including the power of hearing further testimony on collateral errors of fact, and likewise that of setting aside judgments taken by default, if the circumstances call for the interference of the

court.

The power to examine into collateral errors of fact, was probably inserted in consequence of the decision in Partridge v. Thayer, 2 Sandf. S. C. R. 227, to the effect, that on judgment by default, the court could not look into a matter not on record, even though the defect had arisen in consequence of the inadvertence of the clerk of the court. The previous powers of the court to examine into errors of fact in general, notwithstanding the repealing provisions in sec. 351, are asserted in Craw v. Daly, 2 C. R. 118.

In Bort v. Smith, 5 Barb. S. C. R. 283, the question as to

how far a justice's judgment will or will not be reversed on the ground of incompetent testimony, is fully considered; and the principle laid down, that the county court will, in such cases, be governed by the same rules which guide the supreme court, on an application to set aside a verdict, or the report of referees upon a case.

In Carter v. Dallimore, 2 Sandf. S. C. R. 222, it was held that, though the appellate court will not weigh the evidence below, so as to reverse, if it merely preponderates against the judgment, yet a material defect of proof will be fatal.

In Reed v. Barber, 3 C. R. 160, it is laid down that the refusal of a justice to allow additional evidence to be given, after a motion for a nonsuit, forms no ground for reversing his decision on appeal. It is a matter entirely in his discretion.

In Allen v. Stone, 9 Barb. S. C. R. 60, a justice's judgment was reversed, on appeal from an affirmance of it, on the ground that he did not wait one hour for the defendant to appear, before proceeding ex parte; that he restricted the latter in his defence, on his coming into court; and that he issued a short summons without previously requiring the proper affidavit and security from the plaintiff, who was non-resident.

The court above, have, however, no authority to proceed under the section last cited, unless the judgment is before them on appeal. They cannot interfere to set aside a default, on a simple motion, where no appeal has been taken, even though injustice have been done.-Donnell v. Cornell, 1 C. R. (N. S.) 288.

On reversal of a judgment, the amount of which has been collected, restitution may be enforced by the appellate court, under the powers in sec. 369. It is provided that "the order may be obtained on proof of the facts, made at or after the the hearing, upon a previous notice of six days;" which may accordingly be given in the usual form. The proof necessary for that purpose, will consist of an affidavit, showing the collection of the judgment, and the fact of its reversal, unless those facts have already been proved at the hearing; in which case, the application may be grounded on the judge's or clerk's minutes.

It would seem from the case of Sheridan v. Mann, 5 How. 201, 3 C. R. 213, that, where satisfaction has been entered on the records of the court below, the order of restitution will issue as of course; though, if otherwise, the leave of the court