People ex rel. Jones v. Judges of the Dutchess Common Pleas

Headnote

An alternative mandamus allowed to bring up the question, whether the common pleas . have jurisdiction, to make an order for costs against an appellant where they decide to dismiss the appeal from a justice’s judgment, on the ground they have no jurisdiction ; because the justice’s judgment is void.

Motion ex parte by relator for a mandamus, to require the defendants to vacate an order for costs made by them at the last February term, against the relator.-—The facts are as follows: On the 30th July, 1843, one Peter A. Stickle commenced a suit before a justice of the peace of the county of Dutchess, by summons against said Joseph R. Jones; the cause was tried on the 9th day of August, 1843; the justice five days thereafter, to wit, on the 14th of August, rendered judgment in favor of said Stickle against said Jones, for ninety-eight dollars damages and the costs of suit. Jones procured the cause to be removed to the Dutchess common pleas by an appeal, and at the last February term of said court, on the 3d day of February, 1845; the cause was moved for trial by the plaintiff Stickle; the defendant moved that the appeal be dismissed because the court had no jurisdiction; the original judgment as rendered by the justice being void; which motion prevailed, and the court refused to hear the trial of the cause on that ground. At a subsequent day of said court during the same term, the plaintiff’s attorney moved for an order, that

defendant Jones pay the costs of the appeal, which was opposed hy defendant’s attorney, on the ground that the court had no jurisdiction of the parties, for any purpose, except the motion to discontinue the appeal. The court granted the motion, and ordered defendant to pay the appellee’s costs of the appeal, and also the appellee’s costs of opposing the motion to dismiss the appeal, and the appellee’s costs of making the motion for costs.