Irvine v. Lopez

*85By Court,

Tweed, J.:

This cause comes before us on appeal from the district court of Maricopa county. The action was commenced in the court of a justice of the peace, and judgment by default was rendered in favor of the respondent for the sum of two hundred and fifty dollars and costs. On the appeal in the district court the appellant moved the court for a trial de novo, which motion was denied, and judgment rendered in favor of the respondent upon the returns, for such sum of two hundred and fifty dollars, and costs amounting to seven dollars and fifty cents.

Two points are made by the counsel for the appellant: 1. That the court erred in refusing a new trial; 2. That the note sued on was insufficiently stamped, and ought not to have been received in evidence. Section 361, Compiled Laws, page 440, provides that in all appeals from justices’ courts to the district court after the returns are filed, the court shall proceed to examine such returns, and render judgment thereon, as the right of the case may appear, without regard to technicalities or imperfections in pleadings, if they do not tend to the prejudice of the rights of any party.

Section 362, same page, provides that “ such judgment may be rendered upon the returns, or the court may order the same to be tried anew in the district court as substantial justice may require.”

Section 626, page 476, Compiled Laws, provides that “the party appealing may, in his discretion, file with his notice of appeal an affidavit as to any special matters in the proceedings appealed from; and the justice shall return specially as to all matters contained in such affidavits and file such affidavit with his return.”

Section 628 provides that papers shall be transmitted to the district court. The section reads as follows: “Upon receiving'the notice of appeal and the undertaking, as required in the next section, and on the payment of the costs of the action, the justice shall transmit to the clerk of the district court a copy of his docketin the case, and the undertaking filed, and the notice of appeal.” We think the provisions of section 347, page 437, Compiled Laws, under the head of “ appeals in general,” are also applicable to proceeding on appeals from justices’ courts: See sec. 535, page 463, *86Compiled Laws. "What the justice’s docket shall contain is prescribed by section 606, page 474, Compiled Laws. It may be added that justices of the peace are forbidden to grant new trials or to arrest judgments: See sec. 624, p. 476, Compiled Laws.

From the foregoing statutory provisions, it appears to us to be very clear in what cases new trials should be granted in the appellate court. If the transcript be obscure and unintelligible, or if upon its face positive error appears prejudicial to the rights of a party, or if such error appear by an assignment of errors by way of affidavit, sustained by the special return relating thereto from the justice, the appellate court will grant relief: by modifying the judgment, if the error be one which can be corrected in this manner, upon inspecting the returns, and by ordering a new trial when the error complained of can not otherwise be reached. Where no such error appears, either by reference to the transcript or by assignment of errors by way of affidavit, the appellate court can only confirm the judgment, or rather render such judgment as was had in the justice’s court with costs of the appeal.

In the case before us there was no assignment of errors by way of affidavit in the justice’s court. The transcript from the justice’s court is more complete and perfect than such transcripts are usually found to be. If there is in it any defect, it is in relation to the issuance and service of the summons, and such defect, if there be any, is cured by the stipulation that due service of the summons was had in the case. As to the second point made by the appellant, we are of opinion that it is not well made; conceding that the note sent with the papers to the district court was the note sued on, and that under the revenue laws of the United States it was insufficiently stamped, it was too late to raise this objection for the first time in the appellate court, even if the objection would have been good had it been taken in the justice’s court—a point we are not called on now to decide.

From a careful consideration of the case under the statutory provisions referred to, we think the judgment should be affirmed, and it is so ordered.