Rife v. Pierson

Opinion by

Williams, C. J.

John Pierson sued Abraham Pife in debt before a justice of tbe peace. His action.was brought on two due bills, tbe one dated the 2nd of April, 1846, and calling for $50,00 with ten per cent interest, and a credit endorsed thereon for three dollars. Judgment was entered by default for tbe plaintiff for .$90,95 and costs. Tbe defendant took an appeal to tbe district court of Hes Moines county, and tbe plaintiff recovered a judgment against defendant,-and Rodney Arnold bis, bail on tbe appeal, in accordance with- tbe statute, for tbe sum of ninety-four dollars and ninety-six cents damages with posts.

The bill of exceptions shows, that on the trial in the district court, the plaintiff offered in evidence a due bill drawn in his favor by the defendant, on the bach of which were indorsed the words and figures, “Filed Nov. 3d. ’47, A. Ingraham, j. P.” Hie defendant’s cotinsfel Objected to the note’s going'in evidence to the jury; on the ground that it was not thé same note which was before the justice, before whom the suit was instituted and tried Originally. That therefore, it was anew and different “cause of action” which was not tried, there. The only variance relied on to support the objection, is found by reference to the date of the instrument, and the description entry thereof, made by the justice in his transcript. The note bears date the “ 2nd of April, 1846,” whereas the transcript describes it as of the date of “April 12th} 1846.” In all other inspects it is correctly described. Is this a fatal variance? We think as the Case is presented, it is not. It is true it is required by Rev. Stat335', §15,- that the “same cause of action” only, could be sustained and tried by the district court on the appeal. But, in a proceeding of this kind, will it be contended that the district Court is bound with strict and rigid precision, to confine itself to the transcript of the jristice alone, to ascertain whether the instrument offered in evidence to support the plaintiff’s action, be the same which was filed with the justice at the commencement, ás “the cause of the action?” If so, a single clerical mistake of the justice, who may not be very apt in describing with minuteness an instrument of writing of this kind* tfiay opérate to defeat the obvious design of the statute, which saves the casé of a party upon appeal from defeat, for “'errors, defects or imperfection in the proceedings of the justice.” Rev. Stat. 335, § 7.

The due bill itself is sent up with the transcript among the papers of the casé, and is indorsed “Filed Nov. 3d, 1847.” W'hich indorsement is signed by the justice in his official capacity. The sum of money called for, the rate of interest, the month and year are all correctly stated in the transcript.

D. Rover, for plaiiitiff in error.

Grimes and Starr, for defendant.

In actions before justices of tbe peace, the plaintiff is not required to file a declaration, so that the rules of practice in relation to variance between the allegations in the declaration and the evidence offered, will not apply. The record of the justice is not to be taken as the plaintiff’s ■declaration in the case. The instrument showing indebtedness, is in stead qf a declaration, and when filed in the case is a • component part of the record. It comes up with the record, authenticated in the same way that the transcript and other proceedings are, by the attestation of the justice. Coming in this way into the district court, and being an authenticated part of the case with _the proceedings, we think it bears its own marlj qf idem tity; and it must be taken as the instrument upon which the suit was brought originally before the justice. "We consider the variance a mere mistake qf the justice, in describing the instrument in his transcript, which is sufficiently apparent under the circumstancesand that it is cured by the statute.

The argument that the defendant may be sued again, .and that a former recovery could not be shown in defence, is answered by the fact that the instrument is of record in this case by the filing under attestation, and will so remain,

Judgment affirmed.