Mitchell v. Kennedy

Py the Court, Whitoít, C. J.

We think this case was properly dismissed, by the court below for want of jurisdiction. The statute regulating ■ appeals from justices of the peace, (Pen. Stat. Chap. 88, § 226-227,) makes no provision for an appeal in cases of this kind, and as an appeal is strictly a statutory right, we do not see how the right can exist, except as the statute provides.

We are, however, of opinion, that the judgment of the County Court, so far as it gave costs to the defendant in error, is^erroneous. It is contended that the statute authorizes the court to give costs in all cases where an appeal is dismissed, although the reason for the dismissal is a want of jurisdiction in the appellate court. But upon a consideration of the statute, we have arrived at a different conclusion ; and, as there was a total want of jurisdiction, in the County Court, so much of the judgment as gives costs to the defendant in error must be reversed. It follows, from the view we have taken of the matter, that so much of the judgment of the County Court, as dismissed the ap *513 peal, is affirmed, and so muclu’of the judgment as awarded costs to the defendant in error is reversed. (See case of Jordan vs. Dennis, 7 Met R. 590,) and the eases there cited.