Carey v. McDougald's Adm'r

25 Ala. 109 | Ala. | 1854

CHILTON, C. J. —

The points which are decided in the opinion heretofore delivered in this case, being for the first time before, this court, and of much practical importance, we have given to the argument and authorities cited, on behalf of the appellant, for a re-hearing or modification of the opinion, a patient, and, we trust, thorough investigation.

It is insisted by the appellant’s counsel, that the object of the provisions of the Code requiring security for costs of the appeal (§ 1898), and declaring that “no appeal can be taken without giving bond,” <fcc., or “ security for the cost of the appeal,” was merely to secure the payment of the cost; and that the reason on which this court has based repeated decisions upon the old law, sanctioning the practice of supplying in the primary courts defective bonds on appeals from justices, attachment, detinue and claim bonds, applies with equal force to this court; and, as these decisions are departures from the letter of the statute, requiring such bonds to effectuate the intention, we should, in like manner, and for a similar reason, depart from the letter of the provisions under consideration, and allow security to be here given. To rule differently, it is said, would be to prescribe one rule for the primary courts, and hold to a different rule in this court, without reason for the difference.

Let us briefly examine this position. Appeals from justices of the peace are to be tried 'in the appellate court de novo ; in other words,"the appeal, in subh case, is but a mode of bringing the cause and the parties into the Circuit Court, to be proceeded with, as respects the trial, as though it had originated in that court. And as to the proceedings in deti-nue, trial of the right of property, and attachment suits, the primary court has original jurisdiction ; and having original jurisdiction, it may take cognizance of every fact, and try and determine all issues of fact, which may legitimately arise in the progress of the cause, which may be necessary to the complete determination of the cause, and the proper administration of justice and right between the parties. If an insufficient bond has been given, in cases where a good bond is required by law, the court, in the exercise of its original jurisdiction, has power to order a good bond to be given. It can, moreover, test any issue which may be raised, as to the solvency of the obligors; and if that court takes an informal bond, to secure the cost, in cases where such security is necessary to enable a plaintiff to prosecute a suit, and refuses to dismiss the suit, or to require a good one, this court could interfere by mandamus to compel the Circuit Court to proceed and dismiss the suit, or require a good bond. — Barnett & Hutchison v. Warren, Hardin’s Rep. 172. It is manifest, then, that the giving or supplying such bonds, by the order of the court, is a matter of original jurisdiction, which can be, and often has been, made the subject of revision in this court.

So much for the jurisdiction of the primary courts in substituting new bonds or security. Now the argument is, that, as they exercise this power, this court must do so, having sanctioned that exercise by them. But the counsel lose sight altogether of the distinction between a court of original and one of appellate jurisdiction. The constitution of this State expressly declares, that this court, except in cases otherwise provided by it, shall have appellate jurisdiction only.” The taking of bonds or security for costs, is no where made an exception in the constitution, but is expressly delegated by law to the primary courts, or to the ministerial officers of those courts. How then, without a disregard of our official obligation, could we exercise jurisdiction in talcing such bond or security ?

If the clerk, register, &c., shall take insufficient security, they are in certain events liable to the party injured thereby (Code, § 3021); but who shall respond, if insufficient security shall be taken in this court, and how shall its sufficiency be tested ? No mode is provided by which it can be done, for the simple reason that it was never contemplated that it should be done. But the clerk, &c., may swear the sureties as to their solvency (Code, § 3021). If a ministerial officer, or the court below, takes an informal bond, which is adjudged sufficient by the primary court, its judgment may be reversed, or, in some cases, as we have seen, its action may be controlled by mandamus in this court. This right of review, in the language of the appellant’s counsel, “ attaches to, and is inherent in, every party to such judgment,” &c. Of this right, however, the suitor is deprived, whenever this court assumes original instead 'of appellate jurisdiction over such matters ; for who shall control or revise the action of this court, in the performance of this supposed duty, should an informal or insufficient bond be taken ? No one. Then the right of appeal or revision, in reference to the taking of the bond or security, is gone, — is taken away by the exercise, on the part of this court, of original jurisdiction.

Suppose judgment be rendered in the court below for a large sum, and the defendant, with the Code in his hand, goes to the probate judge and demands an appeal, and thereupon he executes a writ of error bond (say in the penalty of fifty or an hundred thousand dollars), to supersede the execution of the decree, and the judge issues a writ of error, instead of certifying an appeal; that this writ of error should be dismissed, or rather treated as a nullity, and the cause ordered to be stricken from the docket of this court; that the probate judge should then' certify that an appeal was granted within the time prescribed by law, an$ should send up the writ of error bond as a compliance with section 3019 of the Code, — the sureties have the right to stand upon the terms of their contract; and their undertaking is, for the prosecution of the writ of error to effect by their principal, &g. The bond, then, would clearly furnish no security upon an appeal under the Code. Now, conceding that we had power to take a good bond, how shall we proceed ? We are not, like the officers charged with that duty, familiar with the pecuniary condition of the parties offered as sureties, and who, from the contiguity of .their residence, may be presumed well calculated to judge of their solvency. Besides, it would be extremely inconvenient for persons to come from distant portions of the State to execute such bonds before us. If we send down to the probate judge to take a. bond or security, conceding that we had power to do so, here delay might ensue and enure to the appellant, whose laches, in failing to tender sufficient security, causes it, and the object of the statute-requiring a speedy determination of the matter of appeal be defeated.

" Without intimating any dissatisfaction with the decisions allowing bonds to given in the primary courts possessing original jurisdiction, wo are satisfied such decisions are wholly inapplicable to this, an appellate court merely.

But to recur to the statute: Section 1898 of the Code requires security for costs to be given, and the names of the securities to be certified by the probate judge, in cases of the kind before us. Section 3041 is general in its terms, and applies to this, as to all other cases of appeal, and declares that “No appeal cau be taken without bond,” &c., or “security for costs of the appeal, to bo approved by the clerk, register, or judge of probate,” &c. Here is a plain, simple, unambiguous declaration of the legislative intention that an appeal shall not be taken without security for costs. We are aware of no rule of construction, which would authorize us in holding that an appeal can be taken without security, when the Legislature, in the most simple, unambiguous terms, declares that no appeal can beso taken. Mr. Dwarris, in his excellent treatise on Statutes, says: “Where the Legislature has used words of a plain and definite import, it would be very dangerous to put upon them a construction which would amount to holding that the Legislature did not mean what it has expressed. * * The fittest course, in all cases where the intention of the Legislature is brought in question, is, to adhere to the words of the statute, construing them according to their nature and import in the order in which they stand in the act. The most experienced and enlightened judges have for some time lamented the too frequent departure from the words of the act by which a case is governed, and themselves hold it much the safer course to adhere to the words of the statute, construed in their ordinary import, than to enter into any inquiry as to the supposed intention of the parties who framed the act. * * They are not to presume the intentions of the Legislature, but to collect them from the words of the act, they having nothing to do with the policy of the law.” “This,” he adds, “is the true sense in which it is so often impressively repeated, that judges are not to be encouraged to direct their conduct by the crooked cord of discretion, but by the golden met-wand of the law.” — Dwarris on Statutes, 703.

It may be that the Legislature intended solely by this provision to secure the officers of court 5 but concede that such was the design, yet it would be clearly competent for that body to make the giving of such security an indispensable pre-requisite to a valid appeal, without which “ no appeal can be taken.”

If the appeal could avail for any purpose, without security, then it would be in the power of the parties, or their attorneys, to dispense by consent with security in any case; and this furnishes a substantial reason, as we think, for making the requirement peremptory, for the officers of court might otherwise go unsecured in their cost.

We think, furthermore, that it may well be presumed that the Legislature intended this provision for securing the costs as a check upon frivolous or unfounded appeals, which, without it, might be resorted to by litigious insolvents with impunity, to the embarrassment .and prejudice of good citizens, and, it may be, as the means of obtaining money as the price of their peace. We would-not be understood as intimating that the case under consideration is of that character ; we know it is not.

An examination of the authorities will show, that the practice we here adopt obtained in New York under a similar statute (1 Coms. 606), in Kentucky under a statute less stringent in its requisitions (7 Mon. 117; 3 Dana 46), in Illinois (4 Gilm. 334), in Virginia (7 Gratt. 374), and indeed in every State where we can find the question has been made upon analogous statutes.

We have but to add, from a more thorough investigation, that we have increased confidence in the correctness of our former opinion, to which we adhere.