People ex rel. Comstock v. Judge of the Wayne Circuit Court

Justice's courts: Dismissal of suit: Judgment: Appeal: Non-suit. The decision of a justice dismissing a suit on motion for want of jurisdiction for an alleged defect in the summons is held to he equivalent in effect to a judgment of non-suit, and is appealable. Semedy: Mandamus: Writ of error:' Dismissal of appeal. Mandamus is the proper remedy to correct an order of the circuit dismissing such an appeal on the ground that such decision of the justice was not a judgment, and therefore not appealable; a return to a writ of error would not regularly disclose the whole proceedings on the motion to dismiss, or the grounds of the dismissal.

Application for mandamus. The relator commenced a suit before a justice of the peace, against one Francis W. Fifield, by short summons, and it was not stated in the summons that either 'party was a non-resident of the county. On the return day the justice, on the defendant’s motion, dismissed the suit for want of jurisdiction for this alleged defect in the summons. The relator appealed to the circuit, and the circuit judge, ón a special motion by counsel for defendant and appellee, dismissed the appeal on the ground that the decision of the justice was not a judgment, and therefore was not appeal-able. Mandamus is now applied for, to require the circuit judge to set aside the order dismissing the appeal.