Christiancy J.:
If the warrant, said to have been issued by the justice in this case, was properly before us, we should probably be [56]*56compelled to treat it as a nullity; because, though such warrant is authorized by the express provision of Sec. 19, Chap., 117 of Compiled Laws, yet, so far as relates to the issuing-a warrant in a case on contract, solely on the ground of thenonresidence of the defendant, this provision is admitted on all hands to be in direct conflict with Sec. 33, Art. VI. of the Constitution of the State, and must have been inadvertently inserted in the statute.
But the warrant, we think, is not properly before us; and we can not, therefore, judicially, notice it; nor can' we no-, tice the various questions of jurisdiction, growing out of it,, which have been raised by the counsel for the plaintiffs in error. The affidavit of Chappee, on which the appeal is based,, is general, and relates only to the judgment on the merits. It does not set forth or complain of any matters connected with the process, or any questions arising upon it before the justice, nor of any decision or ruling of the justice, but. looks only to the judgment on the merits. Any error of this-hind, looking to the merits alone, can be corrected only by a re-trial on the merits in the appellate court.
It is true the statute gives to the appellant, in a certain contingency, the right to avail himself, on appeal, of cer-. tain errors in the proceedings, and erroneous rulings and decisions of the justice in the course of the cause, distinct from the judgment on the merits; to this extent giving to the appeal the characteristics of a certiorari. But, to give-to the appellant this right, and to the appeal this effect, he must make his affidavit special, setting forth the special matters complained of. No other fair construction, we think, can be given to the language of the statute, which, after having provided for the affidavit on appeal in the prior portion of' section 184,
But it is contended that'section 194 of this chapter† requires the justice, in all cases, to return the process without reference to the affidavit. We do not think this the fair construction of this section. The previous section (193) has, we think, made provision for the return of all matters required to be returned, where the appeal is upon the merits, and the affidavit is not special; and this section 194, it appears to us, was .intended to apply only to the return in answer to the special affidavit provided for by the latter portion of section 184.
The language of the first part of section 194 is as follows: “The justice, in addition to the particulars required by the preceding section, shall make a full and complete return as to all matters stated and set forth in such affidavit mentioned in the latter part of the preceding section one hundred and eighty-four.” Now, this section thus far only applies in terms to the answer or retw'n of the justice to the [58]*58facts specifically set forth in the-affidavit; aiid the return of the justice might be supposed fully to meet the requirements of this portion of the section, without setting out a copy of any process or other papers; but, as such copies might be very essential to enable the appellate court to appreciate any objections based upon them, and to render the language more specific, the Legislature therefore provides, in immediate connection with the words above quoted, — “and shall also return copies of all processes, returns, pleadings, and affidavits, upon which any process issued or motion was made, and so much of the evidence and proceedings as may be necessary fully to exhibit the questions, motions, and decisions made and presented in such cause.” It is quite obvious that the “ questions, motions, and decisions” here mentioned do not include the judgment on the merits. It would seem, therefore, to be an obvious inference that the scope of this whole section 194 was intended to be no more extensive than the provision of the latter part of section 184 in reference to the special affidavit, and that it was simply intended to compel the justice to make a full and complete return to the special matters contained in the affidavit.
The construction contended for by the j>Iaintiff iu error would render the provision in reference to the special affidavit wholly useless, so far as the copy of the process is concerned. '
The return of the justice provided for in section 193, where the affidavit is general and upon the merits, is not required to contain the process nor to refer to it.
The return of a copy of a process, then, not being required by the law in this case, is unauthorized; and the Circuit Court could take no judicial notice of it, though returned in fact; it constitutes no part of the record upon which that Court was authorized to act, and does not come judicially before us in return to the writ of error. The case in the Circuit Court could only be treated as an appeal upon the merits.
[59]*59If no motion was made in the Court below in reference to the warrant, the only remedy by which the defendant could avail himself of an objection to the warrant, in the Circuit Court, was by certiorari. If any such motion was made before the justice, the decision of the justice upon such motion, if erroneous, might have been corrected on appeal, if his affidavit had specifically set forth the error complained of.
The second and only remaining ground of error relied upon by the plaintiff in error, is — “That the judgment rendered against Newberry, the surety in the appeal-bond, upon mere motion, and without notice, and without a trial by judge or jury, was unconstitutional, and therefore null and void.”
It is admitted that this mode of entering judgment against the surety is expressly authorized by section 214 of the Act in question. — Sec. 3866 of Compiled Laws.
The bond is executed and returned in all respects according to the statute, with a certificate of the justice (which the statute also requires), showing that Newberry, the surety, justified before the justice his sufficiency as such surety.
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Christiancy J.:
If the warrant, said to have been issued by the justice in this case, was properly before us, we should probably be [56]*56compelled to treat it as a nullity; because, though such warrant is authorized by the express provision of Sec. 19, Chap., 117 of Compiled Laws, yet, so far as relates to the issuing-a warrant in a case on contract, solely on the ground of thenonresidence of the defendant, this provision is admitted on all hands to be in direct conflict with Sec. 33, Art. VI. of the Constitution of the State, and must have been inadvertently inserted in the statute.
But the warrant, we think, is not properly before us; and we can not, therefore, judicially, notice it; nor can' we no-, tice the various questions of jurisdiction, growing out of it,, which have been raised by the counsel for the plaintiffs in error. The affidavit of Chappee, on which the appeal is based,, is general, and relates only to the judgment on the merits. It does not set forth or complain of any matters connected with the process, or any questions arising upon it before the justice, nor of any decision or ruling of the justice, but. looks only to the judgment on the merits. Any error of this-hind, looking to the merits alone, can be corrected only by a re-trial on the merits in the appellate court.
It is true the statute gives to the appellant, in a certain contingency, the right to avail himself, on appeal, of cer-. tain errors in the proceedings, and erroneous rulings and decisions of the justice in the course of the cause, distinct from the judgment on the merits; to this extent giving to the appeal the characteristics of a certiorari. But, to give-to the appellant this right, and to the appeal this effect, he must make his affidavit special, setting forth the special matters complained of. No other fair construction, we think, can be given to the language of the statute, which, after having provided for the affidavit on appeal in the prior portion of' section 184,
But it is contended that'section 194 of this chapter† requires the justice, in all cases, to return the process without reference to the affidavit. We do not think this the fair construction of this section. The previous section (193) has, we think, made provision for the return of all matters required to be returned, where the appeal is upon the merits, and the affidavit is not special; and this section 194, it appears to us, was .intended to apply only to the return in answer to the special affidavit provided for by the latter portion of section 184.
The language of the first part of section 194 is as follows: “The justice, in addition to the particulars required by the preceding section, shall make a full and complete return as to all matters stated and set forth in such affidavit mentioned in the latter part of the preceding section one hundred and eighty-four.” Now, this section thus far only applies in terms to the answer or retw'n of the justice to the [58]*58facts specifically set forth in the-affidavit; aiid the return of the justice might be supposed fully to meet the requirements of this portion of the section, without setting out a copy of any process or other papers; but, as such copies might be very essential to enable the appellate court to appreciate any objections based upon them, and to render the language more specific, the Legislature therefore provides, in immediate connection with the words above quoted, — “and shall also return copies of all processes, returns, pleadings, and affidavits, upon which any process issued or motion was made, and so much of the evidence and proceedings as may be necessary fully to exhibit the questions, motions, and decisions made and presented in such cause.” It is quite obvious that the “ questions, motions, and decisions” here mentioned do not include the judgment on the merits. It would seem, therefore, to be an obvious inference that the scope of this whole section 194 was intended to be no more extensive than the provision of the latter part of section 184 in reference to the special affidavit, and that it was simply intended to compel the justice to make a full and complete return to the special matters contained in the affidavit.
The construction contended for by the j>Iaintiff iu error would render the provision in reference to the special affidavit wholly useless, so far as the copy of the process is concerned. '
The return of the justice provided for in section 193, where the affidavit is general and upon the merits, is not required to contain the process nor to refer to it.
The return of a copy of a process, then, not being required by the law in this case, is unauthorized; and the Circuit Court could take no judicial notice of it, though returned in fact; it constitutes no part of the record upon which that Court was authorized to act, and does not come judicially before us in return to the writ of error. The case in the Circuit Court could only be treated as an appeal upon the merits.
[59]*59If no motion was made in the Court below in reference to the warrant, the only remedy by which the defendant could avail himself of an objection to the warrant, in the Circuit Court, was by certiorari. If any such motion was made before the justice, the decision of the justice upon such motion, if erroneous, might have been corrected on appeal, if his affidavit had specifically set forth the error complained of.
The second and only remaining ground of error relied upon by the plaintiff in error, is — “That the judgment rendered against Newberry, the surety in the appeal-bond, upon mere motion, and without notice, and without a trial by judge or jury, was unconstitutional, and therefore null and void.”
It is admitted that this mode of entering judgment against the surety is expressly authorized by section 214 of the Act in question. — Sec. 3866 of Compiled Laws.
The bond is executed and returned in all respects according to the statute, with a certificate of the justice (which the statute also requires), showing that Newberry, the surety, justified before the justice his sufficiency as such surety.
This bond is, we think, to be read in all respects as if the whole of the statute in reference to the appeal, the bond, and mode of entering up judgment upon it, were recited at large in the bond. And, in this view, it becomes a direct and binding assent to, and authority for, the entry of the judgment in this manner, and stands upon-a principle analogous to that of a warrant of attorney. It is true the authority is here given. to the Court, instead of one of its officers, as the attorney of the party, but this is a difference of form rather than of substance.
The constitutional prohibition against “ depriving any person of his property without due process of law” was obviously intended only to protect persons from being deprived of their property ivithout their assent, unless by due process of law. The Constitution would become a very [60]*60officious instrument indeed, if it sought to force its protection upon any man against his will.
A similar answer may be made in reference to the provision securing trial by jury in civil causes. This right may always be waived; and the assent of the surety to the entry of judgment, on motion, is clearly given in the bond.
The Comts of Kentucky, we are aware, have held a different doctrine upon a similar question. But the Court, in the case of Hughes vs. Hughes, 4 T. B. Monr. 42, cited by the counsel of plaintiff in error, base their decision upon a very early case in that State, and the practice under it, and pretty clearly intimate that if it were a new question they might come to a different conclusion.
Manning and Campbell JJ. concurred. Martin Ch. J. did not sit in this cause.
Judgment affirmed.
Sec. 3836 of Compiled Laws.