JUDGES: Burnett, J., delivered the opinion of the Court. Terry, C. J., and Field, J., concurring.
OPINION
BURNETT, Judge
The Code allows a party to appeal from a judgment rendered in a Justice's Court to the County Court, either upon questions of law alone, or upon questions of fact alone, or upon questions both of law and fact. But this right of appeal can only be exercised in proper cases. In this case, the defendant, by his default, admitted the facts alleged in the complaint. There being no issue of fact, the facts were conceded, and the justice could commit no error as to them; and as the justice could commit no error as to the facts conceded, there could be no appeal from his judgment in reference to the facts. The defendant having conceded the facts to be true as alleged, could not appeal against his own admission. There being no right of appeal in this case upon questions of fact, the defendant could not force the County Court to try the case anew by his own improper act in taking his appeal upon questions both of law and fact. Nor could the defendant ask the County Court to hear the appeal upon the questions of law, for the reason, that there was no statement of the grounds upon which he intended to reply.
Our conclusion is, that in all cases the issue of fact must be made in the Court of original jurisdiction. The County Court can only re-try the issues tried in the Court below. This is what is meant by a trial anew in the County Court, under section six hundred and twenty-six.
Let the writ be dismissed.