John H. Hardison, the plaintiff in error, sued the steamboat Cumberland Valley, before a justice of the peace, in Saint Louis county for work and labor done, and for materials furnished said boat. The account of the plaintiff amounted to sixty-one dollars.
The following set-off was filed before the justice (against the plaintiff), viz:
Jornr H. Hardison, To A. Bennett, l)r. To use of steamboat Cumberland Valley, and the great wreck-pump
16 hours to pump the Light-Foot, at $4 per hour'.. $64 00
A pair of Blocks and Falls. 10 00
Tools in clearing out Light-Foot... 2 00
■Damage in not fulfilling contract in caulking C. Valley. 30 00
$106 00
The suit was tried before the justice on the 19th December, 1848. Upon the plaintiff’s request, a jury was impanneled, who, after hearing the evidence, returned their verdict in favor of the defendant for the sum of $64. The .plaintiff on the 26th September following, filed his'affidavit for an appeal, which was allowed him, and the justice certified the transcript on the 19th January, 1849.
From the record of the proceedings of the Court of Common Pleas, I find, that on the 26th day of February, 1849, the following order was made in this case. “Now, at this day comes the defendant, by his attorney, and files a transcript of the record and proceedings had herein, before the justice, and on his motion it appearing to the court, that said plaintiff has failed to prosecute his appeal, by the payment of the juiy fee, by the statute in such case required. It is considered by the court, that the judgment herein as rendered by the justice, be affirmed, and that said defendant recover of said plaintiff, *161and Terry M. Little, tlie security in the appeal bond, the sum of sixty-four dollars, for its debt, and also its costs and charges herein expended, and have thereof, execution.”
After the affirmance of the judgment by the Common Pleas, the plaintiff, on the 28th of February, 1849, filed, the following motion to set aside said affirmance, viz: Theplaintiff, by A. P, & P. B. Gareselie, comes and moves the court to set aside the judgment in this case, for the following reasons : 1st. That the plaintiff was surprised thereby, for reasons set in affidavit herewith filed. 2nd. That the demand of set-off in the court below exceeded the jurisdiction of the justice. 3rd. That the judgment is otherwise defective, illegal, and void. The following is the affidavit:
The plaintiff, John H. Hardison, in the above entitled cause comes, and in support of his motion filed herein by his attorneys, Gareselie, praying the court to set aside its judgment (viz.) that the judgment of the justice be affirmed, and grant him a new trial, alleges as follows : that he is greatly surprised by the judgment, he having used due diligence and spared as lie supposed, no effort to secure a re-hearing before your honorable court — that'being injured, by the judgment of the justice and greatly aggrieved, not for the purpose of delay or vexation but with the sincere desire to seek redress, he appealed to your honorable court, that he did so acting under the advice of his counsel, learned in the law, that he had just legal and equitable defense. Your affiant further declares that he went to the justice before whom the cause was tried; he inquired what costs were necessary to be paid in order to enable him to carry his appeal to the upper court, and that the justice’s reply that one dollar and a quarter would-suffice, he paid'that sum to the justice, in the belief, that it was all that was required. That being afterw'ards advised by a friend, that a jury fee would be required to be paid before his appeal would be perfected, he said that he had paid it, meaning'the one to the justice and ignorant that any other tvas required ; yet desirous to be safe, he consulted one of his counsels, P. B. Gareselie, whether such a fee wras due, who in reply, asked of plaintiff if he had not paid the justice all costs necessary to take the appeal; plaintiff replied that he had, and counsel then advised him that nothing more was required of him ; that counsel were looking for the case and could not know w'here it was, that it had not been set, this was on the 22nd day of February, A. D. 1849 .- plaintiff then relied on counsel’s declarations, and though desirous to do all in his power, and having done all in his power to procure and perfect his appeal, finds himself frustrated, because as he is informed and believes your honorable court has affirmed the judgment of the justice.
John H. Hardison.
Which wras regularly sworn to before the clerk.of said court. The Court of Common Pleas overruled this motion, and the plaintiff excepted. The plaintiff then filed his second motion, praying the court to set aside its judgment affirming the judgment of the justice and assigned the following reasons : 1st. That the justice had not jurisdiction of the set-off made by the defendant to the plaintiff’s demand. 2nd. That the set-off claimed by defendant is due to a person other than defendant. 3rd. That it is'for an amount exceeding jurisdiction of justice. 4th. That the judgment of the justice is otherwise illegal, irregular and void. Which said second motion was likewise overruled, and by plaintiff excepted to.
From the above statement it is plainly to be seen, that the only questions properly before this court for adjudication are — was the Court of Common Pleas authorized to affirm the judgment of .the justice of the peace ?
And did it exercise soundly its discretion in overruling the plaintiff’s motion to set aside its judgment in affirmance ?
These questions do not extend to any irregularities, errors, or imperfections in the proceedings before the justice of the peace, if any such there be. This court cannot go beyond the action of the Common Pleas in affirming the judgment and in refusing to set its owm judgment of affirmance aside. For the proper understanding of these questions, recourse must be had to the statute of the State : The 23rd section of the 8th article of the act concerning Justices’ Courts, reads thus : “In all cases of appeals-from a. justice’s court, if-the *162judgment of tlie justice be affirmed or if on trial anew in the Circuit Court, the judgment be against tlie appellant, such judgment shall be rendered against him and his securities in his recognizance for the appeal."
I am unwilling to say, that the Court of Common Pleas lias no authority to affirm the judgments of justices of the peace: that court haying- the same power and authority in cases of appeals from justices of the peace in Saint Louis county as the Circuit Courts have in the State at large. In the section above quoted, it is plain tobo seen that the Legislature supposed the Circuit Courts had power to affirm such judgment. I shall answer then the first question in the affirmative’, believing that the power to affirm the judgments of tlie justice of the peace on appeals is in the Circuit Courts, and also in the Court of Common Pleas in Saint Louis county, and whenever such power appears to have been soundly exercised, I am not willing to disturb the judgments of these courts.
The 3rd section of the “act to promote the payment of jurors in Saint Louis county,” approved January 20, 1847, declares that “on the filing of every declaration, petition in debt, bill in chancery or other original statement of cause either in law or equity in Saint Louis Circuit Court, or Court of Common Pleas, the sum of two dollars-shall be paid to the cleric of the court as a jury fee ; also on the filing of any appeal from a justice of tlie peace to either of said courts, the clerk shall receive from the appellant one dollar as a jury fee.” This statute makes it the duty of the clerks of these courts to certify, on the first Monday in each month to the county treasurer, the amount received, stating particularly the source whence derived and to pay over to him the amount of money thus received. These courts then may fix their rules, require the payment of the one dollar to be made to their respective clerks, by the appellant, on every appeal from a justice of the peace ; and in default of such payment, may, upon the appellee’s filing such transcript and paying the dollar as required, declare, that the judgment of the justice shall be affirmed. From the record of the proceedings in this case, it is clear, that the jury fee of $1 00 was not paid to the clerk of the Court of Common PIea3 by the appellant; the only excuse offered to that court for the failure to pay this fee amounts to nothing- more than the party’s ignorance or neglect. The Court of Common Pleas commences its session on the first Monclay in February ; the transcript was made out by the justice of the peace on the 18th of January previous ; on the 26th of February the appellee files a transcript of the proceedings before the justice, and moves to have the judgment below affirmed.
The appellant stands by idle, from the first of February, until near the last day of that month ; and excuses himself by stating that he was looking for his case but could see nothing of it!
This case is one which addressed itself to the sound discretion of the Court of Common Pleas. That court is fully competent to look into the circumstances which surrounded it, and to decide upon them as justice and law required, and having done so, I am not disposed to disturb its judgment. The judgment is affirmed, my brother Judges concurring herein.
(a) Steamboat “Falcon” v. Donohoo, post Gordon v. Scott, 15 Mo. R. 249.