Majority
p. 84Fenno vs. Dickinson.
Headnote
A certiorari to a justice’s court is a new suit; and therefore the covenant of the surety for a non-resident plaintiff on suing out a summons—to pay any sum that may be adjudged against the plaintiff in that suit—does not extend to the costs of a reversal on certiorari of the judgment recovered by the plaintiff before the justice in the suit commenced by the summons.Error to the Chenango common pleas, to review a judgment of that court affirming a justice’s judgment on certiorari. Dickinson sued Fenno before the justice on a covenant ex& cuted by the latter to the plaintiff. The instrument recited that C. Mann, a non-resident of the county, had applied to S. D., a justice of the peace, for a summons against Dickinson, and stated that the defendant thereby became surety that Mann should pay any sum which might be “ adjudged against him, Mann, in the said suit.” It appeared that Mann recovered in the suit commenced by him before the justice, but Dickinson brought a certiorari to the common pleas, where the judgment was reversed and $20 costs were awarded against Mann. In this suit on the covenant the justice gave judgment for the plaintiff for the $20, with costs, which last mentioned judgment was affirmed by the common pleas.
F. U. Fenno, plaintiff in error, in person.
A. C. Moses, for the defendant in error.
Where an appeal is taken to a court of com’mon pleas from a judgment rendered by a justice of the peace, the proceedings in the appellate court are but a continuation of those previously had before the justice. The remedy by appeal is, in effect, a new trial of the cause in the court of common pleas, which the unsuccessful party is entitled to on procuring his appeal to be allowed, and on giving such security as the law requires. The entire proceedings, in
p. 85
such case, are all in one suit, although it was pending at different periods in distinct courts. This was so held in Traver v. Nichols, ( 7 Wend. 434 ,) where it was adjudged that the security given by a plaintiff, on the commencement of a suit in the justice’s court, for the payment of any sum which might be adjudged against him, extended to such costs as were adjudged against him by the court of common pleas, on an appeal from the judgment recovered by the plaintiff before the justice. But a certiorari, sued out to reverse a judgment of a justice of the peace, like a writ of error, is the commencement of a new suit and not the continuance of an old one. In this case the covenant of the defendant bound him to pay the plaintiff any sum which might be adjudged in favor of the plaintiff, and against Mann, in the suit wherein Mann was plaintiff and the present plaintiff was defendant. But nothing was adjudged against Mann, in that suit; on the contrary, judgment was rendered in his favor. That judgment was subsequently reversed on certiorari, and costs adjudged against Mann; but this judgment for costs was rendered in a new suit, and not in the suit commenced before the justice. The defendant was therefore not holden for these costs, and the judgments below were erroneous.
Judgments reversed.
Cases cited
- Traver v. Nichols 7 Wend. 434 p. 85