Jonathan Y. Scammon, plaintiff in error, v. Cornelius Cline, defendant in error.
Error to Boone.
Where on appeal from a justice of the peace, the appeal bond was filed in the clerk’s office, one day before the passage of a law fixing the time of holding Courts in Boone county, and the summons to the appellee, and the supersedeas were issued after the passage of the law : Held,, that the appeal was regularly taken, and that the Circuit Court had jurisdiction of the cause.
A Circuit Court existed in Boone county, as soon as a clerk was appointed by the judge of the circuit, although the latter failed to appoint the time for holding the Court.
This was a suit originally commenced by Scammon against Cline, before Alexander Neely, a justice of the peace of Boone county. The defendant removed the cause from Neely to Hiram Waterman, another justice of the peace of said county, before whom the cause was tried, and a judgment rendered for the defendant, on the 21st of February, 1839.
Scammon appealed to the Circuit Court of Boone county, and filed his appeal bond in the clerk’s office, which was approved by the clerk on the 1st of March, 1839. The act fixing the time of holding the Circuit Courts of Boone county, passed on the 2d of March, 1839. Before the passage of this act, it was made the duty of the judge of the circuit, to appoint the times of holding the Court.
The summons to the defendant was issued on the 8th of April, 1839, and served upon the defendant, on the 17th of the same month. The summons was returnable on the 25th of said month. At the" April term, 1839, the cause was continued. At the next term of the Court held in April, 1840, the defendant moved the Court to dismiss the appeal because it was taken to the Circuit Court of Boone county, before any Court was appointed in said county, and while Boone was attached to Jo Daviess, for judicial purposes. The Court, the Hon. Dan Stone presiding, sustained the motion, and dismissed the appeal. The appellant excepted, and brought the cause to this Court by writ of error.
G. Spring and J. Y. Scammon, for the plaintiff in error.
A. Lincoln and J. L. Loop, for the defendant in error.
Wilson, Chief Justice,
delivered the opinion of the Court:
The Court is of opinion that this case was improperly dismissed. Although the appeal bond appears to have been taken by the clerk before the time for holding the Court was fixed by law, yet the Court itself must be considered in existence at that time, *457otherwise there • would have been no clerk by whom the appeal could be allowed. Until the legislature fixed the time for holding the Court, this authority was, by a prior law, vested in the judge, and whether he exercised the authority, by designating a time, is immaterial.
The existence of the Court, and the right to take an appeal to it, must be regarded as having commenced with the appointment of a clerk of the Court, by the judge thereof.
As respects the jurisdiction of the Court, for the want of which this case was dismissed, we are also inclined to think, that if the Court had jurisdiction at the time its process was issued, it ought to have entertained and tried the cause.
Judgment, therefore, is reversed, and the cause remanded to the Circuit Court for trial.
Judgment reversed.