Majority
p. 535SUPREME COURT. David Wiles agt. Hiram Peck and others. Broome Special Term, November, 1858.
Headnote
On an appeal from the judgment of a justice of the peace, to the county court, and the county judge from incapacity to hear the appeal, transfers it to the supreme court, this court is to hear the appeal on the original papers in the same manner that it would have been heard in the county court, “ and no copy thereof need be furnished for the use of the court.”The papers, therefore, should remain on file in the office of the county clerk, (who is also clerk of the supreme court,) where they were transferred by the county court, and the appeal should be heard in that county, and in no other county.
This was an appeal from the judgment of a justice of the peace in Cortland county, to the county court of that county. The county judge was incapable of hearing the appeal by reason of the fact that he had been counsel for one of the parties in the matters out of which the cause of action arose; and he transferred the cause to this court, pursuant to the directions contained in section thirty of the Code. The defendants’ counsel objected to the hearing of the appeal in Broome county, and insisted that it should be heard in Cortland county.
S. Kellogg, for plaintiff.
R. H. Duell, for defendants.
Although it was the duty of the clerk of Cortland county to transfer the papers in the cause to the supreme court, in the same district, (Code, § 30,) all he did or should have done, was tq take them from the county court files, and place them on those of this court in his own office. He is the clerk of each court. (Constitution, article 6, § 19.)
The appeal must be heard in this court on the original papers, in the same manner that it would have been heard in the county court, if the county judge could have acted, in the
p. 536
cause, “ and no copy thereof need be furnished for the use of the court.” (Code, § 365.) The clerk of Cortland county is not required to take the papers out of his county at the instance or request of either party ; nor should he permit the attorney of either party, to bring them here or to carry them to any other county. The papers should remain on file in the office of the Cortland county cleik, until he is required by the court to bring them into the court-house in that county, on the hearing of the appeal.
For these reasons I am of the opinion the appeal in this cause should be heard in Cortland county. So decided.