Opinion
Fall Sessions, 1839.
APPEAL from the judgment of a justice of the peace.
J. A. Bayard, for appellant.
Gray, for appellee.
The appellant issued two citations for the plaintiff below, and had two returns of non est inventus; and Mr. Bayard, for the appellant, now moved a judgment of non pros. The appellant had a right to a trial; and had used proper means to bring the other party into court, but was unable to have him cited. The two returns of non est on two consecutive citations are equivalent to a return of cited. He therefore asked the court to nonsuit the plaintiff below.
Mr. Gray stated that the plaintiff below having accidentally heard that there was an appeal taken in the case, had employed him just now to appear, but he was not prepared to go to trial; and he therefore declined to appear, merely for that purpose. The plaintiff below, though resident in this county for the whole time, had never been cited.
The Court. — The case seems to be omitted in the act of assembly. Provision is made in case of appeal by a plaintiff below, for the prompt trial of the cause, because a delay affects his rights; but where the appellee is the plaintiff below, the appeal is necessarily a supersedias of the judgment.
The plaintiff below has not been cited. No rule can be laid on him to file his narr., and there seems to be an equal impropriety in ordering on a trial, or nonsuiting him. If we could do so, it would be only on the ground that the plaintiff, having commenced his action below, in which suit the appeal is regularly taken, might perhaps be regarded as a party in this the appellate court.
Without deciding this question, we prefer to take the appearance of Mr. Gray, as it seems that his client has really not had notice of the appeal, though resident in the county; and continue the cause.