Merrill v. Jones

8 Port. 554 | Ala. | 1839

GOLDTHWAITE, J.

— The second assignment of errors, we think, is decisive of this case. It questions the jurisdiction of the Circuit court, and denies its authority to reverse or affirm the particular decree rendered by the County court on the matter then before it, because it is not a final judgment.

The statute provides, that from any judgment or order final, whether in vacation or term time, an appeal or writ of error shall lie to the Circuit or Supreme court, in the same manner as upon judgments of the Circuit courts —(Aik. Dig. 246.) it is, therefore, clear, if the judgment of the County court on the matter before it was interlocutory, and not final, that a writ of error or appeal, can not be rightfully presented; but it is supposed, that as the present plaintiff is the same who brought the cause before the Circuit court by writ of error, he ought not to be permitted, now, to question the jurisdiction of that forum, to which he has resorted for relief, when its decision is adverse to his wishes.' The general rule is very clear, that consent of parties cannot give jurisdiction to a court which otherwise does not possess it, and the Supreme court of the United States, has in several cases considered it proper to dismiss cases from the court, which were brought there by writ of error, at the instance of the plaintiff in the court below, who must, of course, liavo been active in selecting the jurisdiction of the court. Thus, in Winchester vs. Jackson, (3 Cranch, 514,) the plaintiffs in error were also plaintiffs below. In Sullivan et al. vs. The Fulton Steamboat Company, (6 Wheat. 450,) the bill was filed by the complainant, without sufficient allegations to give jurisdiction, and on the appeal prosecuted by him, the decree of the court below, dismissing the bill generally, was affirmed, for the reason that the Circuit court had no jurisdiction; but the decree was modified, so as to be vñlhoul 'prejudice to the complainant on Che menta.

In the case of Colden vs. Knickerbacker, (2 Cowen’s R. 31,) the Court of Errors and Appeals of New York dismissed a writ of error, and refused either to.affirm or reverse, for a defect of jurisdiction; and the decisions of this court, have been uniform on this subject, in all cases where the writ of error is returnable to it—(Johnson’s adm’r vs. Henry, Minor, 13; Glover vs. Robinson, ibid. 101; McLaren vs. Allen, ibid. 117: Harris vs. Kreps, ibid. 184.)

In a case like the present, an affirmance in the Circuit court, of a case of which it has no jurisdiction, might operate as a bar to a review of the same matters when properly presented, after a final judgment, and when, in consequence of such a judgmént, the court would have obtained the jurisdiction, either by appeal or writ of error ; therefore, a substantial reason exists, why such a judgment of affirmance ought to be set aside, and the proper one, dismissing the writ of error, should be given.

The judgment of the County court merely directs, that the administrator of the estate of Benjamin Merrill, deceased, proceed to make distribution,' according to the statute, of the slaves ascertained to belong to the estate. Whatever may be the merits or demerits of these proceedings, — so far as shewn, it is certain, that 'this decree was not a final settlement of the estate, as no distribution is actually made of it, among the distributees, noi-ls there any decree of a final settlement, ascertaining what is due to each distributee, or to the defendant in error, as the sole distributee.

The Circuit court, therefore, should not have entertained jurisdiction of the case, but should have dismissed the writ of error. >

In proceeding to determine the cause on the errors assigned, an error was committed, for which the judgment of the Circuit court must he reversed, and the cause remanded, with instructions to dismiss the writ of error, unless the record shall be so perfected on certiorari or otherwise, as to shew a final judgment or decree in the County court.