Opinion
June Term, 1901.
Samuel L. Wheeler, for the appellant.
H.S. Haff, for the respondents.
The denial of the motion to dismiss the appeal was error. There was no such judgment as the one from which the appeal purports to be taken. Concededly, the action brought in the Justice's Court against the respondents jointly was, by consent of parties, dismissed and discontinued as to the defendant David Blair and continued as against the defendant Mary Blair, in whose favor, alone, judgment was rendered by the justice.
The defendant's counsel contends that the service of the notice of appeal was the commencement of a new action in the County Court; that the action which in the Justice's Court was discontinued as against David Blair was revived by the appeal as against him. This is unsound. The Code of Civil Procedure does not provide for the commencement of an action in the County Court by an appeal, but rather for the transfer to that court of an action in which a judgment has been rendered in a Justice's Court. The new trial in the County Court is on the issues formed by the pleadings in the Justice's Court, and the parties are the same as they were when the judgment was rendered.
David Blair had no right of appeal. He had ceased to be a party to the action and was not "aggrieved by the judgment." (Code Civ. Proc. § 3045.)
The disposition of the motion by the County Court is an injustice to the plaintiff, who, by an offer to compromise, under section 3070 of the Code, could have protected himself against the costs of a trial in the County Court if the defendant Mary Blair had appealed from the judgment rendered; whereas, under the decision made, the new trial would inevitably result in costs against him, as he has no claim against the defendants jointly.
If the counsel for the defendants, on the motion to dismiss his appeal, had asked for relief by reason of any mistake or inadvertence of his, that court would undoubtedly have permitted an amendment of the notice of appeal. But no such relief was asked for. He there insisted, as he does here, that his practice was regular, and he must accept the consequences.
The order appealed from should be reversed, and the motion to dismiss the appeal should be granted.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.