Potter, Chief Justice.
This action was originally brought before a justice of the peace in Sheridan County by R. D. Jones against Charles W. Pointer, and a judgment was rendered in favor of the plaintiff. For the purpose of obtaining a review of the judgment, the defendant filed a petition in error in the District Court sitting within and for said county, and that court, upon a hearing, affirmed the judgment. From that judgment of affirmance the cause is brought to this court on error.
A final judgment of a justice of the peace may be taken to the District Court of the county either by appeal or by proceedings in error. (Rev. Stat. 1899, Sec. 4397.) And in all cases tried by or without a jury before a justice of the peace either party may except to the opinion of the justice upon any question of law arising during the trial of the cause; and when either party shall allege such exception, the justice is required to sign and seal a bill containing such exceptions, if truly alleged, with the point decided so that the same may be made part of the record in the cause. (Id., Sec. 4384.) There is no bill of exceptions in the record, nor does it appear that any exception was taken to any ruling of the justice of the peace. Hence, the petition in error filed in the District Court did not present for consideration any ruling or decision of the justice to which, as a condition precedent to its review on error, an exception duly preserved by bill would be required.
[13]*13But the • plaintiff in error challenged by his petition in error the judgment rendered by the justice upon the ground, among others, that it was rendered without jurisdiction, as shown upon the face of the record. And we are not prepared to hold that such an objection apparent upon the record may not be presented by petition in error without a bill of exceptions, or that error, if any, manifest upon the •face of the judgment of a justice of the peace, is not reviewable on petition in error without a bill, or even in the absence of an exception to the judgment. Without specifically deciding that question, it may be conceded for the purposes of this case that an error of the character mentioned is reviewable in the District Court on érror without a bill; for we are convinced that the record discloses no error, jurisdictional or otherwise.
The docket of the justice discloses the following particulars : October 3, 1904, the plaintiff, by his attorney, filed a petition setting forth his cause of action against the defendant, and summons was issued forthwith and placed in the hands of the sheriff for service, directing the defendant to appear and answer October 7, 1904, at 2 o’clock p. m. October 4, 1904, summons was returned by the sheriff, properly endorsed and filed, showing due service upon the defendant October 3, 1904, at 4:40 p. m. October 7, 1904, at 2 o’clock p. m., the cause was called, all parties being present, and the cause was continued to October 8, 1904, at 9:30 a. m., on motion of the defendant, with the consent of the plaintiff. October 8, 1904, at 9:3o a. m., the cause was called, all parties being present; and defendant made application for jury and deposited six dollars cash for same. The docket then recites the drawing, impaneling and swearing of the jury, and that at 3 o’clock p. m. of the same day the case ryas called for trial, all parties being present and represented by attorneys; .that witnesses were examined, the cause argued to the jury by the attorneys for the respective parties, at the close of the testimony, and submitted to the jury for a verdict, whereupon a bailiff [14]*14was sworn to take charge of the jury; and that, “after being out about three hours, the jury returned a verdict of disagreement, which was accepted by the court, and the jurors given $1.00 each and discharged. This case is now set for trial, by agreement, on October 31, 1904, at 10 o’clock in the forenoon at this office.” An entry appears in the docket as follows: “October 31, 1904, 10 o’clock a. m. Case called. After waiting one full hour defendant came not, but made defáult. Plaintiff appeared in person and attorney, Charles A. Kutcher. R. D. Jones duly sworn to tell the truth, the whole truth and nothing but the truth, and testified in his own behalf. From the evidence the court finds that the plaintiff, R. D. Jones, has sustained damages at the hands of Charles W. Pointer, defendant, equal to the sum of $195. It is now, therefore, ordered and adjudged by this court that the plaintiff, R. D. Jones, have and recover from defendant, Charles W. Pointer, the sum of $195, together with the costs of this action herein taxed at $25.85.”
Among the papers in the case returned by the justice to the District Court appears a verified petition of the plaintiff in writing filed in the office of the justice October 3, 1904, a written and verified answer filed by the defendant with the justice October 8, 1904, and plaintiff’s reply in writing filed with the justice on the sanie day. The petition shows that the action was brought to recover damages in the sum of $195 for personal injuries inflicted upon the plaintiff by the defendant. The answer contains a general denial, and a separate defense alleging that as to the matters charged against the defendant in the petition he acted in self-defense and was justified in the acts charged. The reply denies generally the allegations of the special defense set up in the answer.
Upon the facts appearing by the record as aforesaid, it is contended that, as a jury had been demanded by the defendant and the jury fee deposited, the justice was without jurisdiction to try the cause without a jury, notwith[15]*15standing that a jury had once been called to try the cause and had been discharged upon their disagreement to whom the deposited jury fee had been paid, and notwithstanding the defendant’s failure to appear at the time set by agreement for another trial. In the first place, in respect to this contention, we are not clear that the failure or refusal of a justice in any case to call a jury upon a demand therefor would be jurisdictional error, or that the point could be raised on error without first presenting, the objection in some form to the justice and preserving an exception to his ruling thereon. In this case it seems that the question was attempted to be raised by a motion to vacate the judgment which was filed with the justice more than five months after the judgment was rendered, and after the filing of the petition in error in the District Court; but it does not appear that the motion was ever acted on by the justice, or even presented to him for consideration, otherwise than by its mere filing. Waiving the question thus suggested, we are satisfied that the circumstances disclosed by the record did not entitle the defendant to a trial by jury on the day when the case was finally tried and the judgment complained of rendered.
It is provided by Section 4376, Revised Statutes of 1899, that whenever the justice shall be satisfied that a jury sworn in any cause before him, after having been out a reasonable time, cannot agree on their verdict, he may discharge them and issue a new venire, unless the parties consent that the justice may render judgment.
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Potter, Chief Justice.
This action was originally brought before a justice of the peace in Sheridan County by R. D. Jones against Charles W. Pointer, and a judgment was rendered in favor of the plaintiff. For the purpose of obtaining a review of the judgment, the defendant filed a petition in error in the District Court sitting within and for said county, and that court, upon a hearing, affirmed the judgment. From that judgment of affirmance the cause is brought to this court on error.
A final judgment of a justice of the peace may be taken to the District Court of the county either by appeal or by proceedings in error. (Rev. Stat. 1899, Sec. 4397.) And in all cases tried by or without a jury before a justice of the peace either party may except to the opinion of the justice upon any question of law arising during the trial of the cause; and when either party shall allege such exception, the justice is required to sign and seal a bill containing such exceptions, if truly alleged, with the point decided so that the same may be made part of the record in the cause. (Id., Sec. 4384.) There is no bill of exceptions in the record, nor does it appear that any exception was taken to any ruling of the justice of the peace. Hence, the petition in error filed in the District Court did not present for consideration any ruling or decision of the justice to which, as a condition precedent to its review on error, an exception duly preserved by bill would be required.
[13]*13But the • plaintiff in error challenged by his petition in error the judgment rendered by the justice upon the ground, among others, that it was rendered without jurisdiction, as shown upon the face of the record. And we are not prepared to hold that such an objection apparent upon the record may not be presented by petition in error without a bill of exceptions, or that error, if any, manifest upon the •face of the judgment of a justice of the peace, is not reviewable on petition in error without a bill, or even in the absence of an exception to the judgment. Without specifically deciding that question, it may be conceded for the purposes of this case that an error of the character mentioned is reviewable in the District Court on érror without a bill; for we are convinced that the record discloses no error, jurisdictional or otherwise.
The docket of the justice discloses the following particulars : October 3, 1904, the plaintiff, by his attorney, filed a petition setting forth his cause of action against the defendant, and summons was issued forthwith and placed in the hands of the sheriff for service, directing the defendant to appear and answer October 7, 1904, at 2 o’clock p. m. October 4, 1904, summons was returned by the sheriff, properly endorsed and filed, showing due service upon the defendant October 3, 1904, at 4:40 p. m. October 7, 1904, at 2 o’clock p. m., the cause was called, all parties being present, and the cause was continued to October 8, 1904, at 9:30 a. m., on motion of the defendant, with the consent of the plaintiff. October 8, 1904, at 9:3o a. m., the cause was called, all parties being present; and defendant made application for jury and deposited six dollars cash for same. The docket then recites the drawing, impaneling and swearing of the jury, and that at 3 o’clock p. m. of the same day the case ryas called for trial, all parties being present and represented by attorneys; .that witnesses were examined, the cause argued to the jury by the attorneys for the respective parties, at the close of the testimony, and submitted to the jury for a verdict, whereupon a bailiff [14]*14was sworn to take charge of the jury; and that, “after being out about three hours, the jury returned a verdict of disagreement, which was accepted by the court, and the jurors given $1.00 each and discharged. This case is now set for trial, by agreement, on October 31, 1904, at 10 o’clock in the forenoon at this office.” An entry appears in the docket as follows: “October 31, 1904, 10 o’clock a. m. Case called. After waiting one full hour defendant came not, but made defáult. Plaintiff appeared in person and attorney, Charles A. Kutcher. R. D. Jones duly sworn to tell the truth, the whole truth and nothing but the truth, and testified in his own behalf. From the evidence the court finds that the plaintiff, R. D. Jones, has sustained damages at the hands of Charles W. Pointer, defendant, equal to the sum of $195. It is now, therefore, ordered and adjudged by this court that the plaintiff, R. D. Jones, have and recover from defendant, Charles W. Pointer, the sum of $195, together with the costs of this action herein taxed at $25.85.”
Among the papers in the case returned by the justice to the District Court appears a verified petition of the plaintiff in writing filed in the office of the justice October 3, 1904, a written and verified answer filed by the defendant with the justice October 8, 1904, and plaintiff’s reply in writing filed with the justice on the sanie day. The petition shows that the action was brought to recover damages in the sum of $195 for personal injuries inflicted upon the plaintiff by the defendant. The answer contains a general denial, and a separate defense alleging that as to the matters charged against the defendant in the petition he acted in self-defense and was justified in the acts charged. The reply denies generally the allegations of the special defense set up in the answer.
Upon the facts appearing by the record as aforesaid, it is contended that, as a jury had been demanded by the defendant and the jury fee deposited, the justice was without jurisdiction to try the cause without a jury, notwith[15]*15standing that a jury had once been called to try the cause and had been discharged upon their disagreement to whom the deposited jury fee had been paid, and notwithstanding the defendant’s failure to appear at the time set by agreement for another trial. In the first place, in respect to this contention, we are not clear that the failure or refusal of a justice in any case to call a jury upon a demand therefor would be jurisdictional error, or that the point could be raised on error without first presenting, the objection in some form to the justice and preserving an exception to his ruling thereon. In this case it seems that the question was attempted to be raised by a motion to vacate the judgment which was filed with the justice more than five months after the judgment was rendered, and after the filing of the petition in error in the District Court; but it does not appear that the motion was ever acted on by the justice, or even presented to him for consideration, otherwise than by its mere filing. Waiving the question thus suggested, we are satisfied that the circumstances disclosed by the record did not entitle the defendant to a trial by jury on the day when the case was finally tried and the judgment complained of rendered.
It is provided by Section 4376, Revised Statutes of 1899, that whenever the justice shall be satisfied that a jury sworn in any cause before him, after having been out a reasonable time, cannot agree on their verdict, he may discharge them and issue a new venire, unless the parties consent that the justice may render judgment. Counsel for plaintiff in error relies upon that provision and contends that after a jury has been demanded and the jury fees deposited the justice is deprived of power to render judgment without the verdict of a jury, unless the parties consent thereto, and that in such case where a jury to whom the case has been submitted are discharged upon their disagreement, the only authority of the justice in the premises, unless the parties consent otherwise, is to issue a venire for another jury, without a renewed demand for a jury or the further deposit of jury fees.
[16]*16The section relied on must, however, be read and construed in connection with succeeding- sections of the same chapter. In Sections 4381 and 4382 provision is made for granting- a new trial upon certain grounds after the verdict of a jury; and the last clause of Section 4382 reads as follows:
“If the new trial shall be granted, or the jury be unable to agree, the proceedings shall be in all respects as upon the return of the summons.”
Section 4383 is as follows:
“Upon the verdict being delivered to the justice, and before judgment being rendered thereon, each juror shall be entitled to receive one dollar, which shall be taxed in the cost bill against the losing party. When the jury shall be unable to agree upon a verdict, the same compensation shall be paid them by the party calling the jury, and the same shall be taxed in the cost bill'against the losing party.”
Section 4375, which authorizes a jury trial, provides that, after issue be joined, either party may demand that the action be tried by a jury of six persons, on first paying to the justice the jury fees in advance.
Construing these several provisions together, we think it is not difficult to arrive at a clear understanding of their meaning and effect. It should be remembered that jurors in civil cases before justices of the peace are not paid by the county as are jurors in district courts; and the only provisions for the payment of their fees are those above mentioned. It is clear that the jury fees required to be paid in advance to perfect the demand for a jury in the justice’s court are the fees for a single jury, viz: six dollars. When the jury shall be unable to agree, it is the duty of the party calling them to pay their compensation, and he may no doubt do so without resort to the fees deposited, allowing the latter to remain with the justice for another jury; and in such case the justice might and probably should summon another jury, unless the parties consent [17]*17that he may render judgment. Where, however, the party calling the jury fails to pay them upon their disagreement, but allows the justice to use the deposit for that purpose, which would clearly be his duty in such case, another deposit would be necessary to require the calling of another jury. The provision of Section 4382, that if the jury be unable to agree the proceedings shall be in all respects 'as upon the return of the summons, seems to contemplate the necessity of a demand of another jury if one be desired; though doubtless such a demand should be understood as made where the party himself pays the disagreeing jury, leaving the advance deposit intact in the hands of the justice.
In the case at bar it does not appear that the defendant paid the fees of the jury otherwise than by permitting the justice to pay them with the money deposited, nor is it contended that he did pay them except in that manner; and it became the duty of the justice to pay their fees, as we understand from the record he did, by using the advance deposit for that purpose. A new demand, or at least a new deposit of jury fees, was necessary to entitle the defendant to another jury trial. No such demand or deposit having been made, the justice was authorized to hear and determine the cause without a jury.
It is next objected that the docket entries are insufficient to show a disagreement of the jury. The entry is, of course, inaccurate in stating that the jury returned a verdict of disagreement instead of reciting their inability to agree upon a verdict; but we think the meaning is evident, and that the entry is sufficient to show that the justice was satisfied that the jury could not agree upon their verdict, after having been out a reasonable time, and is sufficient to authorize the jury’s discharge. Further than that, any error in discharging the jury could not be considered in the absence of a bill of exceptions showing an exception to the order at the time.
[18]*18It is further contended that the judgment is void upon-its face, for the reason that the justice failed to enter in his docket “a brief statement of the nature of the plaintiff’s demand, and the amount claimed,” as required by Section 4330, Revised Statutes of 1899; and it is insisted that in consequence of such failure the jurisdiction of the justice over the subject matter of the action is not shown. While it is true that there is no specific statement in the docket of the nature and amount of plaintiff’s claim, there is an entry in the following words on the date of the commencement of the suit: “Comes now plaintiff by his attorney, Charles A. Kutcher, and for a cause of action against defendant complains and alleges as is set forth by plaintiff’s petition already filed in the case.” Conceding that the record of the justice should show jurisdiction, and that a failure in that respect would authorize a reversal of the judgment, it is clearly sufficient on error if the jurisdiction appears from the entire record. And where, as in this case, plaintiff files a written petition at the commencement of the case, stating a cause of action, and claiming an amount, within the jurisdiction of the justice, and such petition is referred to by an entry in the docket as setting forth the plaintiff’s cause of action or demand, the absence of a more definite statement by docket entry of the nature and amount of plaintiff’s claim is not in our opinion ground for reversal. (Straley v. Payne, 43 W. Va., 185; Missemer v. Trout, 17 Pa. Co. Court, 317; Coffee v. Chippewa Falls, 36 Wis., 121; Baizer v. Lasch, 28 Wis., 268; Campbell v. Babbitts, 53 Wis., 276; Jones v. Hart, 90 Wis., 199; Plank Road Co. v. Parker, 22 Barb., 323; 12 Ency. Pl. & Pr., 753-754.) The petition is a part of the record of the case and it is not perceived why it may not be consulted to ascertain whether the case is one within the jurisdiction of the justice, where the judgment is assailed on error for want of jurisdiction.
The objection that the justice did not enter in his docket the particular nature of the process issued is not warranted [19]*19by the facts. An entry in the docket states that summons was issued directing defendant to appear and answer at a certain time stated in the entry, and a summons is a writ specially provided for by the statute. But that objection would not in any event be available to the plaintiff in error, since he appeared to the action and filed an answer, without objecting to the summons. The failure of the justice to make reference in his docket to the written answer filed by the defendant as required by Section 4341, Revised Statutes, is not, in our opinion, jurisdictional error. The answer was in fact filed, and returned as one of the papers in the cause.
It is earnestly contended that the judgment of the justice is void on the ground that the docket of such officer does not show affirmatively that the plaintiff appeared at the time the cause was set for the second trial, or within one hour thereafter. The statute provides that “if either party shall fail to appear within one hour after the time specified for the return of the process, or after the hour of adjournment, the justice shall dismiss the suit, or proceed'to hear the proof of the party present, and render judgment thereon accordingly, as the case may require.” (R. S. 1899, Sec. 4374.) As shown above, in the docket entry of October 31, 1904, when the cause was heard and judgment rendered, it is stated as follows: “October 31, 1904, 10 o’clock a. m. Case called. After waiting one full hour defendant came not, but made default. Plaintiff appeared in person and attorney.” It is argued that this entry does not show plaintiff’s appearance or presence when the case was called, or at any time within the hour thereafter, and that from all that is stated in the entry, the plaintiff may not have appeared until after the expiration of the hour. We do not think that the entry is to be so construed. Docket entries of a justice of the peace are entitled to receive a fair and reasonable construction; and while the entry in question is perhaps somewhat obscure it is, in our opinion, sufficient to show plaintiff’s presence at the time [20]*20appointed for the trial, or at least within the required period thereafter. Had the entry as to plaintiff’s appearance immediately followed the statement that the case was called, it seems to be admitted that it would have been sufficient. We think that the purport and effect of the entry as it stands is the same. The statement that plaintiff appeared, though following the entry of defendant’s non-appearance, is to be understood as referring to the preceding entry that the case was called at 10 o’clock a. m., rather than to the expression, “after waiting one full hour,” in the clause stating defendant’s failure to apear. It is evident that the justice had in mind the provision of the statute above quoted, and his duty to hear the proof of the party present at the hour fixed for trial, or within the time allowed by the statute; and,, in connection with the statement of the date and hour when the case was called, the intention is reasonably clear to record plaintiff’s appearanec at the appointed time. We cannot agree with counsel for plaintiff in error that the entry shows that plaintiff appeared after the justice had waited one full hour. Construing the docket entry fairly and reasonably, we think the statement that plaintiff appeared is related to the entry showing the calling of the case. Had the plaintiff as well as the defendant failed to appear after the justice had waited the full hour, it is reasonable to assume that it would have been so stated, instead of merely entering the fact of his appearance. The statement in the entry that the defendant made default is inaccurate except as applied to his non-appearance on the date set for trial. The defendant had appeared to the action and filed an, answer which remained on file. He was not, therefore, in default. But, having failed to appear on the adjourned day, a trial was authorized in his absence by hearing the proof of the plaintiff, who was present.
An objection is urged to the judgment of affirmance entered by the District Court on the ground that it fails either to order the clerk to certify the decision to the justice, or to award execution out of the District Court, [21]*21as required by Section 4271, Revised Statutes of 1899. That section provides that, upon the affirmance on error in the District Court of.a judgment of a justice of the peace, the District Court shall render judgment against the plaintiff in error for costs of the suit, and award execution therefor; and thereupon order its clerk to certify its decision to the justice, so that the judgment affirmed may be enforced, as if such proceedings in error had not been taken; or that such court may award execution to carry into effect the judgment of the justice as if the judgment had been rendered in the District Court. In the case at bar the District Court affirmed the judgment of the justice and rendered judgment against the plaintiff in error for costs. It does not appear that an order was made awarding execution out of the District Court for the collection of the judgment rendered against plaintiff in error by the justice, or that the clerk was ordered to certify the decision to the justice. But it is not perceived that the failure of the District Court to provide for the lawful enforcement of the judgment affirmed can be regarded as either vitiating the judgment of affirmance or as prejudicial to the rights of the plaintiff in error in the present proceeding, which is a mere proceeding in error for the review of the judgment.
For the reasons above stated, the judgment of the District Court affirming the judgment of the justice of the peace must be affirmed. Counsel for defendant in error ask that a reasonable attorney fee be taxed as part of the costs against the plaintiff in error, as provided in Section 4250, Revised Statutes of 1899. But we think the case should be held within the exception contained in that section, and, as therein provided, our judgment will certify that there was reasonable cause for the proceeding in error. Judgment affirmed.
Beard, J., and Scott, J., concur.