In apt time plaintiffs moved to dismiss the appeal because defendant failed to give and serve proper notice of appeal, and because the purported appeal is not properly docketed, no proper and sufficient transcript of appeal having been certified by the justice of the peace. The court overruled plaintiffs' motion and plaintiffs excepted. There was verdict and judgment for defendant, and plaintiffs appealed. There were two judgments rendered by the justice in favor of plaintiff and against defendant, one for $63.75 and one for $62.22, in two distinct actions. The defendant did not appear in person or by counsel in either case, but in apt time caused a notice of appeal to be served as follows: "Take notice that the defendant in the above entitled case appeals to the Superior Court from the judgment rendered therein by J. A. Bush, justice of the peace, on 10 January, 1916, in favor of the plaintiffs for the sum of $270 and cost of action. Said appeal is taken because the judgment is contrary to law and against the weight of the evidence in the case."
The justice did not send up two transcripts of appeal as required by the statute, one in each case in which he rendered judgment (Revisal, 1493), but without the knowledge or consent of the plaintiff undertook to consolidate the two actions and sent up only one transcript of appeal, certifying that he had rendered judgment for $251.94. The Superior Court denied plaintiffs' motion to dismiss and directed the clerk to docket the case as two cases. No further notice of appeal was given.
The motion of plaintiffs should have been granted. It was the justice's duty to certify up to the Superior Court two perfect transcripts of appeal, one in each case. He had no power after rendering judgment, to consolidate two appeals and certify both in one transcript. It was the justice's duty within ten days after the service of notice of appeal on him to make return in each case to the Superior Court, and to file with the clerk the papers, proceedings, and judgment in each case, with the notice of appeal served on him in each case. Revisal, 1493.
There was no motion made, as far as the record shows, to amend the return or to compel the justice to certify up a proper return in each case. The judge simply directed the clerk to docket the appeal as if two proper transcripts had been made. In this there was error. The motion to dismiss should have been allowed.
Error.
(417)