1 Minn. 401 | Minn. | 1857
By the Oov/rt.
Stephenson, the Defendant in Error, recovered judgment in the District Court against Moody & Perkins, and they appealed to this Court. After the Appeal was taken, Stephenson sought to enforce the judgment notwithstanding the Appeal, by a compliance with the provisions of section 18 of chapter 81 of the Revised Statutes. Moody & Perkins then sued out a writ of Error upon the judgment, and gave the necessary security to effect a Supersedeas. Upon this state of facts, the Defendant in Error moves to dismiss the writ of Error, and for judgment for costs. The question made by the motion is this: Can a party remove a judgment in the District Court to this Court by both wTrit of Error and Appeal ? can both be sustained ?
Chapter 81 of the Revised Statutes, page il3, provides two modes for the removal of judgments from the District Court to the Supreme pourt — one by Appeal: the other by writ of Error. Section 1 of that chapter provides that “ a judgment “ or order in a civil or criminal action in any of the District “ Courts may be removed to the Supreme Court, as provided “in this chapter.” Section 2 of the same chapter is in these words: “ All penal judgments in the District Courts may be “ examined and affirmed, reversed or modified by the Supreme “ Court, or, if necessary, a new trial may be ordered; such ex- ‘‘ amination may be had upon a writ of Error or Appeal as “ hereinafter provided.” The word “ penal ” in section 2 is
The effect of Section 2, then, is to allow “ all final judgments ” in the District Courts to be removed to the Supreme Court “ by writ of Error or Appeal,” — but not by both. They are separate remedies: and the party seeking relief against error in a judgment of the District Court may take either, at his election. Having made his election and taken either, he cannot afterwards take the other, unless he first discontinue the one first chosen and pay the costs thereon. The language of the Statute providing these remedies is in the alternative, and must by its very terms be so construed as to give a party only a choice between the two; and the propriety and justice of such construction is very palpable. A construction allowing a party to take both remedies at the same time would subject the opposite party to be harrassed and oppressed by a plurality of suits for the same cause, and the Court to an unnecessary waste of time and labor in hearing repeated arguments and making repeated decisions upon the same matter: for if both can be entertained, both must be heard and decided, and the judgment be thus duplicated. Such a construction cannot be tolerated. As well might a party bring two or more original actions for the same cause at the same time. The writ of Error must be dismissed, and the Plaintiffs in Error should pay to the Defendant in Error ten dollars for the costs of the motion to dismiss.
Order accordingly.