2 Fla. 569 | Fla. | 1849
Opinion by
This and other cases have been brought up to this Court, on decrees made in the Court below, by consent of parties, “ pro forma.” The professed object of the proceeding is, to avoid the provision of the Constitution of this State, which disqualifies the judge who decides a case in the Court below from sitting on the trial or hearing of it in this Court; and in other cases, to prevent the delay which would occur from the inability of some of the justices to sit in this Court, in consequence of their having been of counsel, or otherwise concerned in the case in the Circuit Court; and thereby to secure a trial in this Court by all the 'justices of the Supreme Court, including, of course, the judge who, by consent of the parties, rendered the decree “proforma” in the Court below. In order that this matter may be more readily and clearly understood, it is deemed proper'
Another object professedly is, to avoid also the delay that would otherwise have occurred in the Circuit Court, from the disqualification of the judge to try a cause in which he had been employed as counsel, or attorney. The statute which creates the disability, declares that “ It shall not be lawful for any judge of this State to try any cause in which he may have been employed as counsel or attorney, but shall continue the same until some some judge shall hold court in the circuit in which said causes may be pending, that was not employed in such cause at the time of his election.” Ibidem, 55, No. 11.
It seems to he supposed that the judge who had been thus employed may, by consent of parties, make such decree “pro forma,” and send the case up to this Court, and that this Court can take jurisdiction of it. If this can be done, it is very clear that it is upon the principle, that the case is not tried in the Court below, and that this Court can take jurisdiction of a case that has not been thus tried ; and it has been strongly insisted that the judge who made such decree may sit and take part in the trial and hearing of the case in this Court. From this statement, two questions naturally arise : First. Can this Court entertain jurisdiction of a case upon a decree thus rendered, by consent proforma ? and
Second. If it can, may the judge who pronounced such decree rightfully sit as judge, and take part in the trial or hearing of such case in this Court ?
The first is by far the most important question, and, indeed, seems decisive of the other; for I am free to confess that, if I entertained no doubt but that this Court might rightfully take jurisdiction of a cause thus brought up, I should not hesitate, were I the judge who made the decree proforma, to sit and take part here in the trial and hearing of the case, upon the principle that it was not in fact tried or decided by me in the Court below. But entertaining as I do a very serious doubt upon that subject, and having expressed that doubt, it is proper that I should state the reasons on which it is founded, and the views which I entertain in relation thereto.
From the record of this case, it does not appear that there has been any trial of this cause in the Court below — and if not, then it is not a proper case for an appeal.
But it is said that it has been decided in the Court below, and, therefore, may be properly reviewed here. Has it, however, been decided. To decide is to determine, to form a definite opinion ; decided means determined, ended, concluded; the word decided implies decision, clear, unequivocal, that puts an end to doubt. Webster’s Dict., Fol. Ed., 1848, page 306. It implies in this case the exercise of judgment upon the law and the facts of the case. Judgment is the decision or sentence of the law given by a court of justice, or other competent tribunal, as the result of proceedings instituted therein, for the redress of an injury. The language of judgments, therefore, is not that it is decreed or resolved by the Court, but it is considered, “ consideratum est per curiam,” his debt, damages, or possession, or the like. Ibidem, 548.
The Supreme Court of the United States, in the case ex parte Tobias Watkins, 3 Peters, 202, says : “ A judgment of a court of competent jurisdiction in its nature concludes the subject on which it is rendered, and pronounces the law of the case ; it puts an end to all enquiry respecting the fact by deciding it.”
A decree is the judgment or sentence of a Court of Equity ; it is either interlocutory or final. The former is given on some plea or-issue in the cause, which does not decide the main question; the latter settles the matter in dispute, and a final decree has the same ef-
It will hardly be seriously contended, we think, that there is any such final decree in this case, or that there has been any such decision, any such action of the mind of the Court upon it. The proceeding on its face does not import any such thing; on the contrary, it appears very clearly intended as a device to avoid what seems to me a clear, plain and unequivocal provision of the Constitution. It is true there is a decree which, if taken by itself, apart from its context, would import finality, but then the record tells us that it was entered by consent of parties, “proforma.” which means “ a mere matter of form ” Branch’s Principia, page 114. Now is mere matter of form to he held conclusive ? Is that the result of proceedings,instituted in a court of justice, for the redress of an injury?
The decree is either final, or it is not final; if it is not final, then it is not properly here, for no appeal lies except on a final decree. Putnam v. Lewis and wife, 1 Florida Reps., 455, 464, 474, and authorities there cited ; to which may be added, Gray v. Grundy, 2 J. J. Marshall, 134. Horsey v. Hopkins, Ibid., 54. Read v. Robb, 4 Yerger, 66. Hoyt v. Brooks, 10 Conn., 188. Kierk v. Shriver, 11 Gill & John., 405. The State v. Pepper, 7 Miss., 348.
If it shall be said that it is a final decree, then I answer that no appeal lies from a final decision entered by consent, “ consensus tollit errorem.” Co. Lit., 126. Webb v. Webb, 3 Swanst., 658. Morrell v. Lawrence, et al., 12 John., 521. Waller v. Harris, 20 Wendell, 563. Ringold’s case, 1 Bland., 5, 12. Harrison v. Roussey, 2 Vez., 488. Toder v. Sansome, 7 Brown, P. C., 244. Bradish v. Gee, Ambler, 229. Jones and others v. Talliaffer. Car. Law Rep., 376. 2 Smith’s Chy. Pr., 50. 1 Barbour Chy. Pr., 712.
The case of Marbury v. Madison, 1 Cranch, 137, 1 Peters’ Cond. Reps., 282, has been cited to sustain the jurisdiction in this case.— In that case, Chief Justice Marshall held that the essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.
If this be the essential criterion, (and I do not doubt it,) then the principle is conclusive upon this case ; for the Court below created no cause for this Court to act upon, unless it committed an error in rendering the pro ¿forma decree. As it did nothing else, it is very clear that there is nothing else, no other proceeding, of that Court for this
The case of Ponder v. Moseley, et al., administrators, &c., 2 Florida Reps., 267, has been cited to show that no evil consequences can flow from the exercise of jurisdiction in these cases, because the Court there held in accordance with the principles laid down in Elliot et al., v. Piersal et al., 1 Peters’ Reps., 340, and re-asserted in 2 Peters, 369, that where a court has jurisdiction, it has a right to decide every question which occurs in the cause, and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding on every other Court; and according to Vourhees v. The Bank of the United States, 10 Peters, 474, 475, where the Court says : “ The line which separates error in judgment from the usurpation of power is very definite, and is precisely that which denotes the cases where a judgment or decree is reversible only by an appellate court, or may be declared a nullity collaterally when offered as evidence in an action concerning the matter adjudicated, or purporting to have been so. In the one case, it is a record importing absolute verity — in the other, mere waste paper.”
This case has been invoked to sustain the jurisdiction of this Court in the case at bar ; but, when rightfully considered in reference to the Constitution of the United States and the acts of Congress conferring jurisdiction upon that Court, it seems an authority against it. The case of Grant et al. v. Raymond, 6 Peters, 220, 221, cited for the same purpose, came before the Supreme Court of the United States in the first place, on a certificate of a division of opinion in the Circuit Court of the United States for the Southern District of of New York. On inspecting the record it appeared that, at the trial of the cause in the Circuit Court, the counsel for the defendants had excepted to the decisions of the Court on various matters which had been presented for its consideration, and that a bill of exceptions had been sealed by the Court. A motion was made for a new trial, when the opinions of the two judges of the Circuit Court were opposed upon questions presented for the decision of the Court, excepted
In the case of the United States v. Tillotson, 12 Wheat., 180, 6 Peters’ Condensed Reps., 507, the CourtJield that “ Where the bur-then of proof, in certain specific defences set up by the defendant, is on him, and the evidence presents contested facts, an absolute direction from the Court that the matters produced and read in evidence on the part of the defendant were sufficient in law to maintain the issue on his part and the jury ought to render their verdict in his favor, is erroneous, and a judgment purporting to have been given under such a charge will be reversed, although the record was made up as upon a bill of exceptions, taken at a trial before the jury upon the matter in issue, no such trial having taken place and the case having assumed that shape by the agreement of parties in order to take the opinion of the Court upon certain questions of law.”— All this case proves is that the Supreme Court of the United States will sometimes give its opinion upon a point of law for the satisfaction of counsel or parties upon an assumed case, in which, of course, no question of jurisdiction could possibly arise.
Prigg v. the Commonwealth of Pennsylvania, 16 Peters, 609, is the strongest case to which we have been referred in support of the jurisdiction that we are called upon in these cases to exercise ; but in that case there had been a jury trial, a verdict taken and judgment rendered upon a criminal charge in a subordinate tribunal of. that State. The question to be decided arose under the 25th section of the judiciary act of 1780, which confers upon the Supreme Court of the United States jurisdiction of questions such as arose in that
It has been suggested that we have no statute or rule providing specifically the, mode of taking appeals in chancery cases, and that we must,' therefore, refer to the English practice. I fear, however, that their mode of proceeding in such cases is not sufficiently anala-gous to our own, to be a safe guide. In the case of Putnam v. Lewis and wife, I Florida, 475, where it was contended that the test of a decree’s being final is that an appeal will lie upon it, this Court [the Judge of the Middle Circuit delivering the opinion] said :We have been referred to various cases of partition in the English Courts, showing appeals from decisions of the Master of the Bolls to the Lord Chancellor, in cases like the one under consideration. If their mode of proceeding was like ouFs, such an authority would be entitled to great respect; hut we find no such similitude or resemblance. By our statute which, in this respect, is the same as that prevailing in the Circuit and District Courts of the United States, a decree .must he final before an appeal can be had. Not so in the English
In the case of Armstrong et al. v. the Treasurer of Athens County, 16 Peters, 235, 236, Mr. Justice Catron delivering the opinion of the Court said : “ This is a writ of error from a State court, and it becomes the duty of this Court, before proceeding to examine the merits of the controversy, to determine whether jurisdiction over it is conferred by the 25th section of the judiciary act of 17.89. It is true no question upon that subject was raised at the argument presented for the appellants, (the respondent having no counsel,) but it has been the uniform practice of this Court, in every case of this description, to ascertain in the first instance whether the record presented a case in which we are authorized by law to reverse the judgment or decree of a State court.”
The same principle is asserted in Stamps v. Newton, 3 Howard’s Miss. Reps., 34, by the Supreme Court of Mississippi, who say, “Although the attention of this Court has not been directed to the present defect by the counsel in the cause, yet we are bound to enquire in every case, whether the facts presented by the record give this tribunal jurisdiction.”
In the case of Read and others v. Robb and others, 4 Yerger’s Reps., 66, the precise question now presented to us came before the Supreme Court of Tennessee (of which Mr. Justice Catron was then Chief Justice,) by whom it was held that they had no jurisdiction of an appeal taken from a decree of a chancery court made pro forma ; that it had jurisdiction of appeals only in cases where there had been a, judicial action in the Court below.
The attention of the Supreme Court of Alabama was called to this subject in 1845, in the case of Elmes v. Sutherland, 7 Ala. Rep.,. New Series, 269, in which a motion had been made to dismiss the bill for want of equity. The Chancellor refused this motion, and it was then agreed by the parties that a decree pro forma should be rendered for all that is alleged or prayed for in the bill, in order that the case might be taken to the Supreme Court for revision. No specific decree was rendered in the case by the Court of Chancery ; it seems to have been carried up on the idea that this agreement was-
At the next term of that Court, the question was directly presented in the case of Stone et al. v. Lewin. 8 Ala. Reps., New Series, 395 to 399. In that case the Chancellor had been of counsel in the cause, and for that reason an agreement had been made that he might enter a decree pro forma, either for or against the complainant, as she might elect, and the following entry appears: “ This case is submitted for a decree on bill, answers and exhibits, by consent, with an agreement that a decree proforma be rendered by this Court in favor of the complainant, perpetuating the injunction heretofore in this case granted. It is therefore ordered, adjudged and decreed that the said injunction be, and the same is hereby rendered perpetual; and that the defendant pay the costs herein.” Peck and L. Clark for the plaintiff in error ; no counsel appeared for the defendant in error. Goldth waite, Justice, delivering the opinion of the Court, said : “We suggested in the recent case of Elmes v. Sutherland, that it was questionable if this Court was invested with any jurisdiction when a decree is not made, by the Chancellor, but is entered pro forma, by consent of the parties, in order to have a decision here more speedily, or from any other cause. This case presents the matter of such a decree so fully that we must now decide the question or consider it at rest. At the formation of our State Government it was provided that “ the Supreme Court, except in cases otherwise directed by this Constitution, shall have appellate jurisdiction only. This is to be co-extensive with the State under such restrictions and regulations not repugnant to this Constitution, as may from time, to time be prescribed by law.” Const., Art. 5, sec. 2. We remark here that this provision of the Constitution of Alabama is identical" with that of our State, which we have above cited. “ It is quite unnecessary,” says that Court, “ to speculate upon the reasons which induced the prohibition contained in this section, as there can be no doubt it was the intention to exclude the exercise of any original ju
Lord Eldon, who, adorned the woolsack longer than,any other man who ever sat in the English Chancery, was so sensible of this, that he considered it to be contrary to the duty of a court of justice, under any circumstances, to make a decree pro forma, in order to suffer the cause to gó up. “ The suitors,” he said, “ have a right to the deliberate attention and the deliberate judgment of the Court in every stage in which, according to the Constitution, the cause may proceed; and there can be no circumstances under which I would ever permit myself to say, as the cause is to go elsewhere, I give
It has been attempted here to weaken the force of the decision of the Supreme Court of Alabama by saying, that at one time it was constituted as our’s is now — that then pro forma decrees were common, and more approved ; but that since a separate Supreme Court has been established, it is disposed to restrain the practice. But there is nothing in that case to justify the remark; it is unworthy of the reputable Court of whom it was made. The language of the Constitution means the same thing, whatever plan may be adopted for the organization of the Courts, and so I have no doubt that learned Court would hold.
The reason alleged for bringing the case up-in this form is, that the judge who made the pro. forma decree shall not be disqualified from sitting or taking part on the trial or hearing of the case in this
“The judges (said the learned judge who pronounced the dissenting opinion in the case of Gadsden v. Jones, administrator, 1 Florida Reps., 348,) are not to presume the intentions of the Legislature, but to collect them from the words of the law, and they have nothing to do with the policy of the law,”.citing Dwarris on Statutes, 703. Again : “ Recently all the judges, and particularly the late present Lord Chief Justice, have manifested the strongest inclination to adhere more
The argumenlum ah inconvenienti is never to be applied, where the sense is clear, where there is no equivocal expression, where the words used admit of only one meaning. Attorney General v. Duke of Marlborough, 3 Madd., 540. Deane v. Clayton, 7 Taunt., 496. Fletcher v. Lord Sandes, 3 Bing, 590. 13 Eng. Com. L. Reps. Broome’s Legal Maxims, 85.
“ In construing an act of Parliament, if the words used by the Legislature in framing any particular clause have a necessary meaning, it will, according to the English authorities, be the duty of the Court to construe the clause accordingly, whatever may he the inconvenience of such a course.” Turner v. Sheffield Railway Company, 10 M. and W., 434. Doe ex dem., Governor of Bristol Hospital v. Norton, 11 M. and W., 928.
“ No justice of the Supreme Court shall sit as judge or take part in the appellate court on the trial or hearing of any case which shall have been decided by him in the Court below.” There is no equivocal expression in this clause ; the words used admit of only one meaning, and most clearly exclude the judge who decided the cause
The case of Charles v. The State, 1 Florida Reports, 298, 300, was a capital case ; there was a verdict of guilty, but no final judgment had been entered. The learned judge who tried the cause, entertaining a doubt as to the sufficiency of the indictment, had certified that matter to this Court, pursuant to an act of the Legislative Council of the late Territorial Government; the question was, whether this Court possessed jurisdiction of the case ? A strong and able appeal was made on behalf of the prisoner, but, after due examination and the most mature consideration, this Court held that it had not jurisdiction, and concluded its opinion in the following words : “ The most prudent and safe course for a court of dernier resort, when a doubt about the power exists, is deemed to be to decline to act. The exercise of doubtful powers by a court of the last resort is always extremely dangerous, and tends to excite alarm and distrust.” Such was the opinion of this Court at that time, and surely, if it was right and proper then, and in a case where human life was at stake, “ a fortiori” it is so now, when we are called upon to extend, by construction of a plain, clear and unambiguous clause of the Constitution, our own powers.
In the case of Willis v. Shepherd, 2 Florida Reps., 399, this Court (the same learned judge of the Middle Circuit again delivering the opinion) said : “We consider it by far safer and more prudent, more in the spirit of the Constitution, and in harmony with the character of our institutions, to keep within the range and limits of a rightful jurisdiction, than to subject ourselves to the reproach of travelling beyond it, and exercising a doubtful and questionable power.”
For the reasons above set forth, with the decisions of two most respectable courts of dernier resort directly upon the point, against the exercise of such jurisdiction, with no like case in favor of it, the question, it does seem to me, cannot rightly be said to be clear of doubt, and the power, I think, should not be exercised.
But if the right to exercise this jurisdiction were perfectly clear, the policy of doing it would, as this Court is constituted, be exceed
Without, therefore, imputing aught of blame to any one for the manner in which these cases were brought up to this Court, I am decidedly of opinion that they should be remanded to the courts below, from which they respectively came, for such proceedings to be had therein as to law, right and justice may appertain — not doubting but that all concerned in them, animated by those high sentiments of honor, morality and good faith, which should mark the conduct of all who are called to aid in the administration of those sublime principles, will be disposed at once, by consent and without delay, to place them in the same position which they would now have occupied, had not these proforma, consent decrees been made.
■Opinion by
This and other cases have been brought to this Court on decrees made in the Court below, by consent and pro forma, to avoid the constitutional objection which disqualifies the Judge who made the decision in the Circuit, from sitting on the Supreme bench, thereby securing in the case a trial by all the justices, and in other cases to prevent the delay which would arise for the want of justices to try the case in this Court, owing to the inability of some of the other justices to preside, from having been counsel or otherwise concerned.
There being an equal division of the justices as to the right to entertain cases so situated, I proceed to announce the views by which I have been governed in arriving at the conclusion that the cases can rightfully and should be tried and disposed of. The objection is that „ihe jurisdiction of this Court is appellate only ; that this matter not
Passing, however, this view of the subject, the enquiry arises, whether it is in violation of the Constitution to try a case so situate ? It is said to be so, because the jurisdiction of the Court is appellate and to decide these cases is to try them originally, as if in a court of original jurisdiction. The clause in our Constitution is almost identical with that in the Constitution of the United States, and if the objection be tenable, we shall be able, by reference to the decisions of
At an early period the Court through their Chief Justice, Marshall, in the case of Marbury v. Madison, declared as “ the essentia] criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.” 1 Cond. Rep. S. C., 283.
It can hardly be contended that any of these cases have been ere-•ated in this Court by their institution here, or that, in case of their affirmance or reversal, the decree or sentence of the Court would be •carried into execution here. There has not been, nor was there, any thing to be done originally here — no testimony to be taken — no amendment of the pleadings. The cases, if tried, are to be tried upon the decree and action of the Court below. This being the general rule and principle, let'us see how far ■ in practice the Court has ■conformed to their doctrine by assuming or refusing to consider cases situate like the present.
The case of the United States v. Tillotson came up as upon a bill of exceptions taken to the opinion of the Court, upon a trial before a jury upon the matters in issue, when, in reality, no trial was had, but the case assumed this shape by the agreement of the parties, in order to have the opinion of the Court upon certain questions of law. “ We must,” say the Court, “ consider the case exclusively upon principles applicable, to it as upon a bill of exceptions taken at a real trial.”— The Court took jurisdiction and reversed the case. 12 Wheat., 180.
In Grant and others v. Raymond, a question was, whether the Court would entertain the case as it came up from the circuit. Mr. Chief Justice Marshall suggested that the case might be brought on if the parties would agree that it should stand as if a judgment had been given by the Circuit Court on the exceptions. The case, he said, could not be heard on a difference in opinion of the judges of the
Another case more directly in point is that of Prigg v. the State of Pennsylvania. It was a writ of error to the Supreme Court of the State of Pennsylvania, to revise a judgment of that Court, as a case involving the construction of the Constitution and laws of the United States. Prigg was indicted in the Court of Oyer and Terminer, of York County, for forcibly taking away a negro woman, and a verdict was rendered against him. The case was removed to the Supreme Court of the State and the judgment affirmed •proforma, and the case was carried to the Supreme Court under the 25th section of the judiciary act of 1789. The judgment of the Supreme Court of Pennsylvania was reversed. 16 Peters, 609.
To appreciate the full force of this decision and its application to the present case it will be proper to refer to the action of the same Court on cases arising under the 25th section, showing the requisites to the vesting of jurisdiction as to them. In Armstrong and others v. the Treasurer of Athens County, the Court held “ that to give the Supreme Court jurisdiction under that section, it must appear that a question involving the Constitution and laws of the United States was necessarily involved in the decision, and that the State court could not have given the judgment or decree which they passed, without deciding it.” 16 Peters, 282.
At the same term the Court refused jurisdiction of a case under this section, although all objection was waived, saying “ consent will not give jurisdiction, and we have on several occasions said that, when the act of Congress has so carefully and cautiously restricted the jurisdiction conferred upon this Court over the-judgments and de
In the case of the United States v. Stone, the Court it will be seen say: “We are aware that in some cases, where the point arising is one of importance and difficulty and it is desirable, for the purposes of justice to obtain the opinion of this Court, the judges of the circuit have sometimes, by consent, certified the point to this Court as upon a division of opinion, when, in truth, they both rather seriously doubted than differed about it. We do not object to a practice of this description when applied to proper cases and on proper occasions.— But they must be cases sanctioned by the judgment of one of the judges of this Court in his circuit. A loose practice might render this Court substantially a court for the original decision of all cases of importance when the Constitution and laws intended to make it altogether appellate,” &c. 14 Peters, 525.
These cases very conclusively show, we think, that in the opinion of the Supreme Court at least there is no objection to the exercise of jurisdiction in a case situate like the present, and certainly under circumstances less urgent and imperious. We might well be content to rely upon this authority.
Let us examine how the matter stood under the English law, which is more immediately an authority with us, than that of the Supreme Court itself. The mode of taking appeals under our law is provided for by the rules of practice in the courts of equity of the United States and, in case they are not applicable, by the practice of the High Court of Chancery in England. Duval, 137. In the rules adopted by the Supreme Court of the United States there is no provision for the taking of appeals, so that they and our statute also being silent, we must refer to the English practice. And here, I think, we shall find even less difficulty. According to the English practice a party had three modes of redress when aggrieved by a decree :— re-hearing before the same or another judge, appeal to the House of Lords, and bill of review. A re-hearing by the Chancellor of an order or decree made by the Master of the Rolls, or of the Vice Chancellor, is in part an appeal and governed in general by the same rules. 3 Daniel’s Prac., 1602. A case may be re-heard be
It is clearly not to this jurisdiction our laws can have an application as, very clearly, by the practice and general understanding, no new pleadings or proof can be adduced in the Supreme Court.
We have been referred to the case of Elmes v. Sutherland in the Supreme Court of Alabama, as decisive. The circumstances under which that decision was given are entitled to consideration; the Supreme Court of that State is a separate tribunal and independent ot the Circuit Courts, and there may be, and undoubtedly is, a propriety in each discharging its duty as designed by the Constitution and Laws of the State ; nor is it now the wish or design to encourage on the part of the Circuit Judges of this State an evasion of duty, but to provide for the exigency in which the loss of one Judge, by having made the decision below, will incapacitate the Supreme Court for action in the case. The Judge, too, who makes the proforma decision below, does not avoid responsibility,, but actually assumes it, and a more responsible position in the Court above. We learn that it was the practice in that State, whilst a system like our own prevailed, to admit pro forma decrees. The same state of things also prevailed in North Carolina previous to the establishment of a separate Supreme Court. The decision in Alabama refers to the case of Brown v. Higgs, 8th Vesey 566, as authority on the subject, yet we find Lord Eldon to say : “ Upon conversation with persons who are practised in courts of equity, it has been thought that in cases of this sort the court might formally affirm the judgment and suffer the cause to go to the House of Lords,” &c. But he considered it contrary to the duty of a court so to act, as suitors had a right to the deliberate attention and judgment of every court in every stage in which, according to the Constitution, the cause may proceed, &c. Brown v. Higgs. Now the objection here is not as to the power or right of the Court to make a proforma decree, but to its impropriety, an objection by no means applying to the cases before us, as the parties themselves ask us to adopt this course as the better means of attaining their rights. The learned Judge spoke of the practice as being
But there is another view of this case in our judgment no less conclusive. Appeals from decrees in chancery are regulated by the practice of the Court of Chancery in England, there being nothing in our laws, nor in the rules of the Supreme Court of the United States, adopted by our laws (with the single exception that the appeal shall be taken within two years,) to prescribe the mode of taking the same. From an opinion delivered by the late Judge Baldwin, exhibiting a masterly analysis of this subject, we find the appellate power (that of courts of chancery,) is an assumed one, from the necessity of the case, being neither conferred nor regulated by statute. It may and has been exercised according to the exigency of the case and time as either may call for the adoption of new rules or orders which partake more of the character of legislation than the mere regulation of the forms and modes of proceeding in the practice of the courts. 4 Bridg. Eq. Dig. 50 pl. 49. Not restrained by any act of Parliament they permit or prohibit the action of courts of equity in cases appealed from according to their discretion. Appendix 777. 9 Peters 777.
It has been supposed that the general law regulating the mode of suing out writs of error and prosecuting appeals was applicable to cases in chancery, but we do not think so ; it is true the term decree is used, but this of itself would not embrace them any more than the use of the word judgment in an act regulating chancery proceedings would include cases at law; the fact is that the terms judgment and decrees are in some respects treated as synonimous by the Legislature. Independent of this, there is such a contradiction between this law and the law as to proceedings in chancery, as to forbid the construction contended for. Besides, the law allowing two years for appeals evidently showed the consideration of the Legislature that they stood on a different footing. And, indeed, under that view, if a party in chancery failed to appeal within ten days he would have been remediless.
This Court has already exercised the power of making rules for the practice in the Chancery cases.
It is said, however, that the judgment to be pronounced by this
This Court itself, in Ponder v. Moseley, quoting the authority of the Supreme Court of the United States in Voorhees v. Bank of the United States, 10 Peters, 474, says : “The line which separates error in judgment from the usurpation of power is very definite and is precisely that which denotes the cases where a judgment or decree is reversible only by an appellate Court or may be declared A nullity collaterally, where it is offered in evidence in an action concerning the matter adjudicated or purporting to have been so.” 1st Florida Reports, 267.
In the case of Parkhill’s administrators v. the Union Bank, the jurisdiction of the Superior Court of the Territory was considered by the Supreme Court, at the January term, 1846, under the following circumstances •. The Union Bank obtained a judgment against persons who had been, by the same Court, at a time prior to its date, removed from the office of administrators. In reference to this removal the Sup. Court say : “ eo instanii the letters of administration were taken from her and annulled she became as to the suit cimliter mor-tuus.” Sentiments to the same effect, declared by the Sup. Court of the United States, were quoted with approbation in the following language : “ By his [Savage’s] removal from the office of executor, he was as completely separated from the business of the executor as if he had been dead, and had no right to appear in or be a party in this or any other court, to a suit which the law confided to the representative of the deceased.” Again : “ Could an execution have correctly issued on the judgment against the defendant ? It could not not have been issued against the estate in the hands of M. A. Parkhill, because there was no such character in existence,” &c. The Supreme Court of the United States, in the case of Savage, also had said “the execution on the decree was unauthorized and void, and no right of property will pass by a sale under it, if one be made by the Marshal.” Florida Reps., 127—130. 1 Howard, 282. 17 Peters, 224.— At the last term of the Court, in a very elaborate opinion delivered by the Chief Justice, it was asserted as an “ essential principle of natural justice that every man have an opportunity to be heard in a court of law, upon every question involving his rights or interests, before he
The judgment rendered in the case of the Union Bank v. Parkhill’s administrators came again for consideration before the Court at the last term, in a suit between Ponder and Moseley, and it was then held that the Superior Court had jurisdiction to give judgment so as to bind the estate of Parkhill — that the judgment was a valid one, and that a sale under execution by the Marshal passed the right of property to the purchaser. Ponder v. Moseley and others, adm’s, Reports 1848, p. 267.
But this Court on two occasions, at their sessions of 1847 and 1848, has given an express and direct sanction to the consideration of decrees taken pro forma. In Bluett v. Nicholson, decided in 1847, the question of jurisdiction was presented in another aspect, ■on an application to the Court to decide a question not presented by the pleadings, which was refused. 1 Florida, 884. The case of Le Baron, &c. v. Fauntleroy, was a case of importance, as well for the ■amount involved, as the delicate and interesting questions presented; it was argued with great ability ; even new proof was adduced, yet no one suggested the want of jurisdiction... Florida Rep., 1848, 293.
At the present term, in the case of Edwards v. Moseley, the case .as presented in the Court below was varied, by the introduction of new facts, yet the point of jurisdiction was not raised, although unquestionably presenting an exercise of direct original action by the ¡appellate court;
It is said that the question of jurisdiction is a delicate one, and the -old maxim is quoted that consent cannot give jurisdiction. The force •of both expressions, it is conceived, is misunderstood. By the first, I understand that a Court will hesitate to embrace within their jurisdiction cases, or questions, .or persons not rightfully the subjects of
The principle, then, upon which our courts of law act is, to enforce the performance of contracts not injurious to society, and to administer justice to a party who can make that justice appear, by enlarging the legal remedy, if necessary, in order to attain the justice of the case. Broom’s Legal Maxims, 36.
The construction of the judiciary of the State gives facilities for the promotion of justice, by having the same judges to preside in the Circuit and Supreme Court, not possessed where these are separate tribunals. Does it not, then, become a duty so to exert the judicial power, arising from this source, as that public justice will be most effectually promoted.
For my own part, having undertaken to discharge the high public trust of administering justice, as provided by the Constitution, without sale, denial, or delay, I am not for regarding exceptions to its performance, existing rather in the letter than the spirit. I have no fear that a judgment of our’s will be reversed by another tribunal, or that it will be set aside as a nullity by another court. Surely with the precedents from the Supreme Court of the United States — those in this Court expressly to the point — the implied jurisdiction asserted in Moseley a. Ponder, where judgment was given in a case where there was no defendant before the Court — certainly there can be no question as to the jurisdiction. A motion has been made to ■ withdraw the case, and send it back to the Circuit Court. To this, I cannot give my consent. In my opinion, it is rightfully here, and can only be rightfully disposed of by a decision.of thacasa.. I would as.
