The opinion of the court was delivered by
Sarrord J.:1. actions for SodSoaveT to a higher court by appeal. This was an appeal from a judgment of a justice of the peace to the district court. The offense charged was a misdemeanor, as that term was defined in the statutes in force at the time 0f jqs alleged commission and prosecution. Comp. L., 1862, chap. 84, and chap. 33, section 302. That the justice had jurisdiction to try the case, there is no room for doubt, inasmuch as such jurisdiction was expressly conferred by laws of 1867, chap. 49, section 1. That an appeal from the judgment of such justice of the peace, to the district court, was allowable, is also clear; [section 4 of said chapter 49, laws of 1867.] There is no question made as to the regularity of the appeal. The case then was properly in the district court.
2. oases on aptried™3™™, "Were the proceedings then had in accordance with law in form and substance ? The case was heard as upon a petition in error '; the judgment of the justice was declared “affirmed,” without a trial de novo having first been had. There seems to have been no authority of law for such a course of procedure. It was not the intention of the law, that, in such a case, the action of the justice should be- reviewed in this manner; but it was expressly provided, that the district court should “ have full power and authority by proceedings de novo, to hear, try and fully determine by final judgment and execution the case so appealed, the same in- all respects as if it had been commenced in the district court.” Laws of 1867, chapter 50, section 1, *39The record then does not present such a course of proceeding as the law contemplated should be had in any respect, and the judgment must for this reason be reversed.
As to the several questions presented upon the argument here, they are not properly before us, and need not therefore be considered.
Kinsman, C. J., concurring. Valentine, J., not sitting: