Spence v. Beck

Headnote

On the hearing of an appeal from a district court, the return of the justice cannot be contradicted or impeached by affidavit. It is conclusive, in respect to the statements contained in it.

If a return is erroneous, it can only bo cometed by a motion to the court.

Appeal by defendant from a judgment of tbe First District Court, entered by default. On tbe return day of tbe summons, in .this ease, the defendant failed to appear until after tbe cause was called, and it was adjourned to tbe 25tb of June, 1856. On tlr^t day tbe defendant- was late, and did not enter the court room until after tbe canse bad been taken up, and the justice bad just finished taking tbe testimony of the plaintiff's witness. The appellant submitted, on tbe appeal, with tbe return, an affidavit that tbe justice refused to inform him of tbe nature of tbe plaintiff’s complaint, or communicate to him what bad been tbe testimony of tbe witness, though ho gave him leave to cross-examine the witness, which be was unable to do, not knowing tbe nature of tbe testimony or of tbe complaint. The return and tbe respondent’s affidavit stated that tbe defendant demanded to see the complaint, that the justice stated its contents to him, and also stated the testimony to him. but that ho refused to band him the complaint itself, as be was using it in the trial; that tbe defendant and his aitorne}- thereupon went away again, and judgment was rendered for tbe plaintiff.