Webster agt. Hopkins.

jections taken by the appellant upon the trial. This is specific, and tells the respondent what errors of law the appellant alleges have been committed.

"But in a case like this, the respondent has no intimation, either upon the trial or in the notice of appeal. That the judgment is against the law, is a vague generality as far as he is concerned.

"That it is against the evidence, is different in its character. Where both parties appear and there is a conflict of testimony, this court cannot reverse the judgment; although it may seem that the testimony preponderated against the successful party. • (8 How. Pr. R., 377, and cases cited; see, also, Moak agt. Foland, 1 Howard's Court of Appeals Cases, 11.)

"In a case where the defendant failed to appear, the appellate court can reverse the judgment, if there is no evidence to support it; but if there is legal evidence tending to make out the plaintiff's cause of action, this court would not reverse, though it might well entertain doubts of the sufficiency. (Same authorities, and 7 How. Pr. R., 64; 113.)

"That a judgment is against the evidence, is different from the assertion that there is no evidence to sustain it. In the latter case, the court would examine the return after argument upon that ground, and reverse the judgment if the proposition was found to be true; but can it be said that it is against evidence, when there is evidence tending to support it, or that in this case there is no evidence ?"

The appellant alleged that the judgment was against the law and evidence; and after the above remarks, the judge proceeded to consider the latter branch, viz., that it was against evidence. And held, upon that branch of the case, that there was evidence enough to justify the judgment, at least so far that an appellate court, sitting merely in review, would not be authorized to reverse it as against, or for want of, evidence.

A. SAWIN, for appellant, said,

First. The county court, upon appeal from a judgment of

Webster agt. Hopkins.

a justices' court, where a return has been made by the justice, and the error complained of is not of fact, upon the argument of the case upon the return, (no motion being made to dismiss the appeal,) must hear and decide the cause upon the matters contained in the return. The object of the notice of appeal is to give jurisdiction to the court over the parties and the subject matter; and that accomplished, the notice of appeal dies, and is or ought to be buried. (See provisions of the Code, §§ 351 to 371.)

The error of the learned county judge, in his opinion, (printed ⚫ in the case,) arose from an application of the decisions made upon motions to dismiss appeals on account of the omission to state the grounds of error in the notice of appeal, to the final hearing of the case upon the merits. (See the case in 18 Wendell, 550, and 2 Sandford, 632.)

Besides, if the county judge could look at the notice of appeal on the argument, and adjudge it defective, the proper judgment to be rendered is not one of affirmance of the judgment, but of dismissal of the appeal.

Second. No court had power, before the enactment of the Code, on trial, to amend process or pleadings by striking out the name of one co-defendant, in an action brought against several parties upon a joint contract, or in such case to render judgment against one defendant and in favor of the other, except in case of a defence which operated as a personal discharge of one defendant, as infancy, &c. (See 5 John. 160; 5 Wend. 229; 3 Cow. 374; 20 John. 153; 18 John. 459, 478.)

Third. The provisions of the Code now allowing such amendments, are not made applicable to courts held by justices of the peace; and no legislature of any intelligence will ever confer upon those courts that power. (See Code, § 64, sub. 15.) It follows, therefore, that the justice erred in giving judgment in favor of Clark and against defendant Hopkins, and for that reason the judgment should be reversed.

Fourth. If the justice regularly exercised the power of discontinuing Clark, then the action should have been tried as if originally Hopkins had been sole defendant; yet the strongest

Webster agt. Hopkins.

testimony-in fact, the only testimony-of the delivery of the tickets (except the admissions of Hopkins, which, taken as a whole, exonerate him from liability,) by plaintiff to any one, is to Clark. That testimony was not withdrawn, and remained, therefore, as evidence against Hopkins.

J. W. THOMPSON, for respondent.

BACON, Justice. The error into which, in my view of the case, the learned county judge has fallen, is in mistaking the office or function of the notice of appeal; and also the remedy which is to be applied where a defect exists in the notice. By the Code of 1848, if a party, against whom a judgment had been rendered, desired to review the proceedings and judgment by appeal, he prepared an affidavit, in which he was required to state the substance of the testimony and proceedings before the justice, and the grounds upon which the appeal was founded. If the opposite party deemed the affidavit to be erroneous or defective, he could correct omissions or misstatements therein by an affidavit on his part, and the appeal might be heard on those papers only. But the court had power, if the affidavits were contradictory or defective in material points, to direct the court below to make a return of the testimony and proceedings, and then the appeal was heard on all the original papers in the case, and which were to constitute the judgment-roll, to be filed in the cause.

By the Code of 1851, the provisions of which are now in force, the system was somewhat changed, and instead of the affidavit of the party desiring to appeal, he is required to serve a notice of appeal within a given period on the justice and the opposite party; which notice is to "state the grounds upon which the appeal is founded." The justice then makes the return, and upon that return the appeal is argued (Code, § 364)-and the return on which the appeal was heard is to be filed with the clerk, and constitute the judgment-roll. The office of the notice of appeal, therefore, is to require and enable the justice to make a full and complete return of the entire proceedings in VOL. XI.

10

Webster agt. Hopkins.

the cause, and especially to call his attention to the matters which are particularly relied upon to reverse the judgment he has rendered. It gives the court jurisdiction of the parties and the subject matter; and having accomplished this end, its function is performed. It is no indispensable part of the papers upon which the appeal is to be heard in the court above; and it is no more necessary that it should appear in the printed case than the certificate of a justice of the supreme court, without which no judgment can be reviewed by appeal from the county to the supreme court. If, indeed, the notice is utterly defective in stating the ground of the appeal, the mode of taking advantage of that defect is by a motion to dismiss the appeal; and such was the practice under the old system anterior to the Code, where, in the affidavit which the party was required to make in order to obtain an allowance of the writ of certiorari, "the grounds upon which an allegation of error is founded," was to be stated. In the case of People agt. Suffolk Com. Pleas, (18 Wend. 550,) referred to by the county judge in his opinion in this case, that was the purport of the decision. The common pleas, on account of this defect, says BRONSON, J., "should have quashed the certiorari."

And to the same effect precisely is the case of Williams agt. Cunningham, (2 Sand. 632,) which was a motion to dismiss the appeal; and it was decided on the ground that the affidavit on which the appeal was founded did not make any specification of the errors which it was alleged the court below had committed.

This being the rule applicable to this case, it became the duty of the county court to look into the return, and see if the justice had committed any error in law which required a reversal of the judgment. The return shows that neither of the defendants appeared upon the trial; and that after the testimony had been closed, the cause was held open until the ensuing day, when the plaintiff again appeared and moved to amend his complaint by complaining against Hopkins alone, and discontinuing as to Clark, which motion was granted; and the court, thereupon, rendered a judgment of discontinuance as to

Webster agt. Hopkins.

Clark, and at the same time a judgment against Hopkins as sole defendant, for $70, besides costs. This was clearly

erroneous.

Before the Code, it is too clear to require the citation of an authority, that no court had power to amend the process or the pleadings in an action against two or more defendants on a joint contract, by striking out the name of a co-defendant, and rendering judgment against one, and in favor of the other, save in one or two exceptional cases, where a defence strictly personal, as infancy or bankruptcy, was allowed to prevail. The Code has altered the entire rule on that subject; but the sections which give that power to the courts are confined to actions pending in courts of record, and have no application to justices' courts.

The provisions in respect to amendments by adding or striking out the names of parties and the correction of mistakes, &c., are found in a distinct part of the Code, under title VI., which obviously, and in terms, has reference to the pleadings in civil actions, and is ex necessitate confined to courts of record, which are clothed with discretion in reference to the terms upon which amendments shall be allowed, and possess the appropriate machinery by which their orders may be enforced. It would be a very indiscreet legislation which should attempt to impart to justices' courts a power of this character and importance; and I am satisfied the authors of the Code could never have contemplated it in the original construction of the system; nor have the legislature, in the various revisions through which it has passed, ever extended it to this length.

The utmost extent to which the general provisions of the Code, in reference to actions and the parties thereto, &c., have been made applicable to proceedings in justices' courts, will be found in the 15th subdivision of the 64th section, which enacts that "the provisions of this act (the Code) respecting forms of action, parties to actions, the rules of evidence, the times of commencing actions, and the service of process upon corporations, shall apply to these courts." These all point to specific provisions in the Code on those particular subjects, and necessarily exclude from the action of these tribunals, those