Molandin v. Colorado Central Railroad

3 Colo. 173 | Colo. | 1877

Thatcher, C. J.

This is essentially an appellate tribunal. Causes can only be heard in this court when properly removed from the lower courts by appeal or writ of error. Unless the statute prescribing the mode of bringing cases into this court from the lower courts be complied with, we are without authority to assume jurisdiction. Until the court has acquired jurisdiction of a cause under the law the agreement of parties to the action relative to its .status and disposition in this court, can have no force or effect whatever. The case before us is somewhat anomalous; neither a writ of error, nor a scire facias to hear errors, has ever been issued. A transcript of the record has never been filed in this court. By no method recognized by the law 'are we apprised that this case was ever pending in the court below. It is styled “an agreed case.” Technically it is not what is understood by an agreed case, nor is it so treated by counsel. If it were an agreed case no judgment could be pronounced before the filing of the affidavit required by the twenty-eighth rule of this court. When the court once acquires jurisdiction of the subject-matter, the defendant by a voluntary appearance may dispense with the service of the scire facias as he may waive .any other personal privilege. So far, however, as relates to the writ of error, it may well be questioned whether without its issuance, this court has jurisdiction of the subject-matter. The supreme court of the United States has uniformly held that the issuance of a writ of error is essential to the exercise of its appellate jurisdiction. Washington County v. Durant, 7 Wall. 694; Hodges et al. v. Williams, 22 How. 87. In the case last cited the court held that the writ of error is not a mere matter of form, but matter of substance prescribed by law and essential to the jurisdiction of the court (and referring to the case of Hines v. Papin with approval), that an erroneous writ could not be amended even by consent of parties upon the ground that consent of parties could not confer jurisdiction over the cause, where it was not given by law and legal process. This doctrine, so far as it relates to amending erroneous writs, would not, of course, apply here, where the right to amend the writ so as to make it conformable to the original record, is conferred by statute. In Wisconsin it is held that the issuance of the writ of error is necessary to the jurisdiction of the appellate court. In the case of Rolke v. The State, 12 Wis. 573, the court says: “ Suppose an inferior court should send up a record of a cause to the supreme court, without any writ whatever, no one would insist, because the papers were filed with the clerk of the supreme court, that ipso facto, the supreme court had jurisdiction. The court of review must issue its writ running to the inferior court, and by means of its process, bring the cause before it in a proper manner.”

We are not unaware that the rigor of this principle has been somewhat relaxed by the supreme court of Illinois. In the case of Birkby v. Birkby, 15 Ill. 122, the court says, “ where the record is brought up by the party and filed, properly certified in the first instance, the writ of error is unnecessary, or at most is but matter of form.” But sound principle, the general analogies of the law, and the weight of authority clearly indicate that when a cause is sought to be removed by writ of error from the court below to this court, that the writ of error must in fact issue; that jurisdiction of the subject-matter can only be acquired in the manner provided by law. '

Another objection, and one which is certainly fatal, even if doubt were entertained as to the last, consists in the failure of the plaintiff in error, to cause to be filed in this court, the record in the cause properly certified. How are we to know that such a cause was ever pending in the district court of Arapahoe county ? By what means are we to be informed that a judgment of nonsuit was entered in the court below ? A duly certified transcript of the record is clearly competent evidence of these facts, and the only evidence which this court under the law can recognize.

By stipulation, the parties to this cause, in the absence of a writ of error, and in the absence of a certified transcript of the record, attempt to confer jurisdiction upon this court. Our statutes will be searched in vain to find any provision which confers jurisdiction by stipulation. Consent of parties cannot give jurisdiction of a cause. The law alone can confer jurisdiction over the subject-matter.

But when this court has once acquired jurisdiction of a cause, “ parties may doubtless stipulate to waive errors, or to waive certain proceedings required by statute, but consent cannot confer jurisdiction, where a statute has provided that it can only be acquired in a certain manner. Keene v. Whittaker, 13 Curt. 248; Rathbun v. Moody, 14 Minn. 364; Burckle v. Eckhart, 3 Comst. 137; Jewett v. Hodgdon, 2 Greenl. (Me.) 335. This cause must be

Stricken from the docket.