144 N.W. 130 | S.D. | 1913
Lead Opinion
By affirming the rulings of the circuit court we shall reach a different conclusion than that reached by this court in Plunket v. Evans, 2 S. D. 434, 50 N. W. 961, though upon a record showing identically the same situation, as a reading of the opinion in Plunket v. Evans discloses that it was an action wherein the relief demanded — the subject of the action — was not within the jurisdiction of the justice of the peace; that, upon the appeal'to the district court, there was no review sought of the rulings of the justice upon questions of either law or fact or upon questions, of law and fact; that, as in the case at bar, the appellant, under the provisions of section 101, J. C., demanded “a new trial in the appellate court.” In-the Plunket Case, the court said: “The jurisdiction of the district court depended entirely upon the jurisdiction of -the justice court. * * * The jurisdiction of the district court acquired by virtue of the appeal was simply that of the justice court. The original jurisdiction of the district court is not involved or called into exercise.” Of the decisions cited in the Plunket Case, but one, that of Ball v. Biggam, 43 Kan. 327, 23 Pac. 565, contains any discussion of the question now before us, or gives any reason for the proposition therein announced. The language used in Ball v. Biggam is strikingly similar to that in the Plunket Case: “The jurisdiction of the district court is exclusively and wholly appellate. Its original jurisdiction is not invoked at all.”
This question is most exhaustively treated in the case of In re Burnette, 73 Kan. 609, 85 Pac. 575, cited in the Sanderson Case. It will be noted that this is a much later decision than that of Ball v. Biggam, decided by the same court and cited in Plunket v. Evans. In the Burnette Case the court said: “The jurisdiction to consider and decide causes de novo is in its essence original. The manner in which a case reaches the higher court is not the test. Jurisdiction being the power to hear and determine, the nature of the functions to be exercised controls, whether they are brought into activity by primary process or by removal from an inferior tribunal. Upon a trial de novo the power of an appellate court in dealing with the pleadings and the evidence, in the application of the law, and in the rendition of judgment according to the right of the case, all independent of the action of the lower court, is no different from what it would be if the case were begun there originally, and hence is not appellate within the meaning of laws creating jurisdiction.” This distinction between
In the Baker 'Case it appears that, at that time, under the Constitution of the state of Florida, a. justice had jurisdiction, as in this state, up to- the $100 limit, but that instead of the circuit ■court having concurrent original jurisdiction, the original jurisdiction of the circuit court was -from $100 up. The Constitution provided that the circuit court should have final appellate jurisdiction in all civil cases arising in a court of justice of the peace in which the amount or value of the property involved was $25 or upwards. There had been enacted a statute regulating proceedings in justice courts and providing that upon appeal, the records should be transmitted to the circuit court “and thereupon the said appellate court shall proceed to hear the said cause and may allow such amendments therein as may be just and render such judgment as may be conformable to law and the justice of the case. The trial shall be by jury if demanded- by either party.” Thereafter ¡there was enacted a statute providing, “All appeals taken f-rom a judgment of any justice of the peace shall be tried de novo.” The
We would cite in further support of our views the case of Seurer v. Horst, 31 Minn. 479, 18 N. W. 283, and Lyons v.
The judgment and order appealed from are affirmed.
Dissenting Opinion
(dissenting). I am not able to concur in the majority opinion in -this case. The question involved on this appeal in no manner relates to the merits of the controversy, but is purely a question of practice; -and, so far as this case is concerned, it is a matter of little consequence what conclusion is reached. The real question at stake is the stability of the decisions of this court. In Plunket v. Evans, 2 S. D. 434, 50 N. W. 961, the appeal was upon questions of both law and fact, and a new trial demanded in the appellate court, just as in this case, and the court announced the rule that: “The jurisdiction of the district (circuit)_ court depended entirely upon the jurisdiction of the justice court. * * * The jurisdiction of the district (circuit) court acquired by virtue of the appeal was simply that of the justice court.” This rule has been in force and has been used as a guide by the profession and the courts of this state for nearly 25 years, and I can see no justification for supplanting- it with a different rule at this time. I have examined the -cases cited in the majority opinion; but, with the exception of Seurer v. Horst, 31 Minn. 479, 18 N. W. 283, and Lyons v. Miller, 2 N. D. 2, 48 N. W. 514, I can find no support in any of them for the position taken in the opinion of the court in this case. Both of these cases had been published prior to the consideration of the Plunket Case and, presumably, were considered by this court when the Plunket Case was under consideration. But at that time the rule therein announced was deliberately rejected and the rule above quoted adopted -by this court. Neither do I think the discussion of the original jurisdiction of the circuit court at all relevant to the question involved on this appeal. The statute provides the manner of -invoking the original
The judgment appealed from ought to be reversed and the action dismissed.