Harvey v. Van Dyke

<p>Justices’ courts —Manner of reviewing justice’s judgment—When appellant may dema/nd neto trial in aptpellaie court—Practice — Code of Civil Procedure, section 3008.</p> <p>It is not in every case where the defendant demands in his answer judgment in his favor exceeding fifty dollars that he, as appellant, may demand and have a new trial in the appellate court, but only in those cases where from the nature of the action and the condition of the pleading it can be seen that the demand has some basis in fact or law in its support.</p> <p>An improper pleading cannot be made the basis of a demand for a new trial in the county court, under the Code, applicable to appeals from judgments rendered by justices of the peace.</p> <p>Where an action was brought in a justice’s court in trover for taking and converting a cow, and damages were claimed in the sum of fifty dollars, the defendant answered by general denial, also set up property in himself, demanded judgment for the dismissal of the complaint and for seventy-five dollars damages, &c. Judgment was rendered in favor of plaintiffs for forty-four dollars and twelve cents. The defendant in his notice of appeal to the county court demanded a new trial in that court. The justice’s return having been filed the plaintiffs moved thereon for an order transferring the case to the law calendar, and that it be heard on the justice’s return without a new trial therein, which motion was denied:</p> <p>Held, that the practice was correct. It was proper to determine in advance whether the appeal was to be tried on a question of fact or one of law. The county court had jurisdiction to determine that question, and it could do it as well on special motion as at opening of trial.</p>