28 Ala. 453 | Ala. | 1856
The appellate jurisdiction of this court is conferred by the constitution, and is co-extensive with the State. — Constitution of Alabama, Art. V, § 2. It_lies, as a matter of right, on the application of either party, or their personal representatives, from any final judgment or decree of the chancery, circuit,or probate courts, “exceptin such cases as are otherwise directed by law.” — Code, § 3016. It follows, then, that in all cases, except those “ otherwise directed by law,” when final judgment has been rendered by an inferior tribunal, the supremo court has jurisdiction of the subject-matter. This jurisdiction is not created by, or dependent for its existence on, the statutes of the State, If no statutory regulations were enacted, still the jurisdiction would exist;
The constitution declares, that the appellate jurisdiction of the supreme court shall be subject to “ such restrictions and regulations as may, from time to time, -be prescribed by law.” Article Y, § 2, chapter 1, title 5, of the Code, contains the chief “'restrictions and regulations” which the legislature have heretofore imposed. Section 3040 prescribes the timo within which an appeal ■ may be taken. Sections 3016 and 3041 enact, that “ the clerk, register, or judge of probate, must certify the fact that such appeal was taken, and the time when, as part of the record”; and said section 3016 further provides, that a compliance with its provisions “ gives the supreme court jurisdiction of the case.” What is the proper construction of the words, “ gives the supreme court jurisdiction of the case”? Not that the certificate creates the appellate jurisdiction of this court: the constitution had done that. The language, “ appellate jurisdiction,” is employed in contradistinction to original jurisdiction, and defines, ex vi termini, the subject-matter of that jurisdiction; namely, the right of “ declaring and applying the law,” to questions arising on final j udgments and decrees of inferior courts. It is manifest, then, that the constitution confers on the supreme court jurisdiction over the subject-matter.
Neither does the certificate, except in a qualified sense, give jurisdiction over the person. The term “persons” simply denotes the parties who are to be affected by the decision of the questions arising on the record. Without parties, neither this court nor any other can pronounce judgment on the subject-matter. In courts of primary jurisdiction, the plaintiff voluntarily gives the court jurisdiction over his rights, by availing himself of the process which the law affords, to compel his adversary to litigate with him. The defendant is in this way brought into court; and thus those courts acquire jurisdiction over the “persons.” Final judgment being rendered on the matter in controversy between the persons or parties litigating there, the subject-matter in dispute, and the disputant parties, become inseparably united; and this court can
Seeing, then, that the jurisdiction of this court over subject-matter and persons, so' far as the latter is an element of the former, arises under the constitution, can either the bond or certificate be properly regarded as a jurisdictional fact? To hold them such, is to declare that the solemn judgments of this court, pronounced on records wanting either the bond or certificate, or when either is substantially defective, are absolute nullities, and may be collaterally impeached, whenever and wherever they are offered in evidence.
The Code must be construed as a system of laws. Thus viewed, its obvious purpose was1 to simplify and .harmonize legal proceedings. It abolishes, by implication, ■ writs of error in civil cases, and substitutes appeals as a uniform rule. To apply to that rule the strict construction applicable to penal enactments, is to defeat, in this respect, the entire policy of the Code.
The most important change in the law of appeals, effected by the Code, is the requirement of supersedeas bonds, or security for costs, in all cases. The system being a new one, inexperienced or careless officers fall into many errors. Frequently the bond is defective in parties, or in the condition, and yet more frequently the certificate is informal. Sections 3016 and 3041 of the Code are a regulation of appeals, under section 2, article V, of the constitution. What are the nature and policy of this legislative regulation? ' '
Section 3041 declares, that “ no appeal can be taken without giving bond to supersede the execution of the judgment or decree, unless the appellant give security for the costs of such appeal.” Section 3016 enacts, that the certificate, in conformity with its terms, “gives the supreme court jurisdiction of the case.” In my opinion, the term “jurisdiction” as found in this chapter of the Code, cannot properly be regarded as conferring power to declare or apply the law to either subject-matter or persons, technically so called. It gives jurisdiction over the case. It is the mode prescribed, by which a party
This mode is nothing more nor less than the same rule which governs the bringing of suits in the circuit court, as deduced from the various provisions of the Code affecting that question. The service of complaint and summons on the defendant brings him before the court, and gives jurisdiction of the case. It is the machinery by which the inherent power of the court to declare the law, is brought actively to bear on the parties; the process by which a complaining party may force his adversary into court, whether he is willing or not. The defendant, without service, may waive this privilege, — can come into court, and appear or plead, and thus give the court an unquestionable right to pass on the merits of the controversy. After such appearance and plea, no one will doubt the jurisdiction of the courf over subject-matter and person, or the binding efficacy of its judgments.
So, I hold, that parties, between whom there exists a final judgment in an inferior court, may waive these pre-requisites, and rightfully invoke the action of this court. I do not hold that, under an agreed state of facts, or simulated record, we could entertain jurisdiction. Our power over such subjects is appellate only. But in all cases, in which final judgment has been rendered in a court of inferior jurisdiction, in a lona fide suit, this court possesses the constitutional power to revise such final judgments; and our decisions pronounced in such cases, whether brought here by appeal, or by consent, express or implied, are valid and binding on the parties to them. I cannot assent to the distinction, that this mode or formula is an indispensable pre-requisite in the one case, while it is universally concedéd it may be waived and dispensed with in the other.
The bond or security for costs, required by section 8041 of the Code, was obviously intended to protect parties and the
The appeal in this case was taken to the June term, 1854. At that term, argument on the merits was offered by both parties; and at the January term, 1855, a decision was pronounced by this court. On petition by appellant, a rehearing was then ordered; and at the present term, motion is for the first time made to dismiss the appeal, for alleged irregularity in the bond for costs. In my opinion, the irregularity cannot now be inquired into, and this court has jurisdiction of the case.
A majority of this court concur in overruling the motion to dismiss the appeal.
I lay down the following propositions, which, in my opinion, are maintainable both by argument and authorities: 1. Jurisdiction over the matter of errors, in the proceedings of the court below, is conferred upon this court by the constitution, unless its constitutional jurisdiction has been restricted by act of the legislature. 2. Sections 3016 and 3041 of the Code do not restrict the jurisdiction over the subject-matter conferred by the constitution, but simply prescribe the sole instrumentality by which the adverse parties to the suit below may bring the particular case under the pre-existing jurisdiction of this court. 3. The appeal, not being a restriction upon the jurisdiction over the subject-matter, may be waived by the appellee, whose rights in the par
1. The first of the foregoing positions is a necessary and uncontroverted deduction from the first and second sections of the fifth article of the constitution of the State. — Durousseau v. The United States, 6 Cranch, 312.
2. If the legislature has restricted the jurisdiction over the subject-matter, in such a case as this, by making it dependent upon the fact that an appeal bond, or security for costs, has been given, it results from sections 3016 and 3041 of the Code. The former of those two sections provides, that an appeal shall lie, as a matter of right, from any final judgment or decree of the chancery, circuit, or probate courts. The latter section says, that no appeal can be taken, without bond to supersede the execution or decree, unless the appellant give security for the costs of such appeal. Under these statutes, it has been decided by this court, that there can be no appeal, unless the bond or security for costs has been given. A different rule would do violence to the statutes. The legislature having, in the exercise of its constitutional authority, prescribed an appeal as the agency by which the law brings under the revisory power of this court cases where there has been a final judgment or decree, there is an implied exclusion of any other. To this effect are the decisions of the supreme court of the United States. — Durousseau v. The United States, supra; Marbury v. Madison, 1 Cranch, 174. It follows, that this court cannot, of itself, bring its revising power to bear upon the .rights of the parties to the final judgment, in the absence of th'e bond and security for costs, without the one or the other of which there can be no appeal. But it does not follow, that this court has no jurisdiction over the subject-matter, or that the parties may not voluntarily subject their rights under the final judgment to the operation of that jurisdiction.
An appeal, in this State, is the mode of commencing a new and independent suit in this court,-the object of which is a revision of the proceedings of the inferior court. .It is the mode of initiating a judicial proceeding, before a court of competent
If the legislature intended, by the two sections of the Code above quoted, to exercise the power expressly conferred upon it, to regulate the jurisdiction of this court, it is clear that they have not proceeded further than to appoint the means-by which that jurisdiction may be- put in exercise over the case and the parties. There can be no reason why such a regulation should not be as much subject to the waiver of the parties, as the proceedings commencing any other suit prescribed by the legislature, when acting within the circle of its authority. The manifest intention of the legislature, by the statutes under consideration, as has always been held in
The element in the jurisdiction over a case which cannot be supplied by consent, is the jurisdiction over the subject-matter; and the reason why that cannot be given by consent is, that it must be conferred by the law. It is the authority of the court, and can be derived alone from the law. - "Whatever pertains merely to the bringing of the case under the operation of that jurisdiction, may be waived. — 2 Bacon’s Abridgment, 618; Ives v. Finch, 22 Conn. 101; State of Rhode Island v. State of Massachusetts, 12 Peters, 720; Boone et al. v. Poindexter, supra; Bostwick v. Perkins, Hopkins & White, 4 Ga. 50; Martin v. Higgins, 23 Ala. 176; Moore v. Fiquet, 19 Ala. 318; Merrill v. Jones, 8 Porter, 554; Wyatt v. Judge, 7 Porter, 37.
From the conclusion that the parties may waive the appeal, it is a necessary sequence, that a joinder in error shall amount to a waiver. It is an unequivocal act, implying a submission to the jurisdiction of the court, and has always been so considered. — Turnley v. Stinson, 1 Ala. 457; King v. McIlvane & Collier, 1 Porter, 286; Battle v. Wolf, 1 Cushman, 318; Dayton v. McIntyre, 5 Howard’s Practice Reports, 114; and authorities above cited.
In Kentucky, Virginia, and New, York, there are decisions, upon statutes somewhat like ours, that the security, upon which the appeal is demandable,is a matter pertaining to the jurisdiction of the case, and that therefore the courts must, upon motion, dismiss in the absence of such security. — Yarborough and Wife v. Deshazo, 7 Grattan, 374; Clinton v. Philips, 7 Monroe, 118; Langley v. Warner, 1 Comstock, 606.
In none of these cases was the question of waiver presented, or passed upon. In a New York case, in which the question did arise, it was decided, in effect, that the motion to dismiss would not be sustained, after the party has “ appeared, answered, or proceeded in such a manner as to give the court
There is no decision in this State irreconcilable with my conclusions. The doctrine of waiver, in reference to appeals under the Code, has never, until this term, been raised. There does not appear to have been any case, in which an appeal has been dismissed in this State after a joinder in error. In one case, (The State v. Williams, 26 Ala. 85,) it is stated, by mistake, that the dismissal was ex mero motu. In several of the cases, the cause was stricken from the docket, because the. court had not acquired jurisdiction of the case. The question whether that jurisdiction could have been given by the parties did not arise. In Carey v. McDougald, 25 Ala. 109, there are two or three expressions in the argument of the opinion, which tend to a conclusion different from that to which I have attained. I regard the decision in the case of Carey v. McDougald, as a sound exposition of the law, and I entertain the highest rpspect for the opinions of the late court, and would be extremely reluctant to depart from them. It is, therefore, a source of congratulation, that, upon this important question, the convictions of my judgment have brought me in conflict with only two or three incidental expressions in the previous decisions of this court.
To deny to a joinder in error the effect of waiving an appeal, or deficiencies in it, would be productive of great injustice. It would permit appellees to conceal a detected deficiency in the appeal, until another appeal was barred by lapse of time, or until on the hearing in this court he might find the inclination of the court adverse to him on the merits. He would thus be able to wrong his adversary and speculate upon
The 2nd section of the 5th article of the constitution of Alabama is in the following words: “ The supreme court, except in cases otherwise directed by this constitution, shall have appellate jurisdiction only, which shall 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; provided, that the supreme court shall have -power to issue writs of injunction, mandamus, quo warranto, habeas corpus, and such other remedial and original writs as may be necessary to give it a general superintendence and control of inferior jurisdictions.”
“ Appellate jurisdiction,” and “a.general superintendence and control of inferior jurisdictions,” are both conferred by that section upon this court; but they are nevertheless distinct things, and must not be confounded. Under the former, this court can do no act unless it be either an exercise of appellate jurisdiction, or necessary to enable it to exercise appellate jurisdiction; for appellate jurisdiction means, jurisdiction to revise and correct the proceedings in a cause already instituted, and not to create a cause. — Marbury v. Madison, 1 Cranch, 175. Under the latter, this court may take original jurisdiction of divers applications; as, of an applica'tion by a member of the house, for a mandamus against the speaker, to compel him to certify to the comptroller the amount to which the member is entitled for mileage and per diem compensation; or of an application for a prohibition to a chancellor; or of an information, in the nature of a quo warranto, to try the eligibility of an individual to the office of a circuit judge held by him. — Ex parte Morgan Smith, 23 Ala. R. 94; Ex parte Pickett, 24 Ala. R. 91; The State v. Porter, 1 Ala. R. 688.
“ A general superintendence and control of inferior jurisdictions ” is, by the constitution, granted to this court unconditionally. “ Appellate jurisdiction” is, by the very terms of the grant, subjected to “ such restrictions and regulations, not repugnant to this constitution, as may, from time to time, be prescribed by law.”
My opinion is, that the law requires us to decline to exercise that jurisdiction at his instance, and to dismiss his appeal. — Durousseau v. The United States, 6 Cranch, 312.
Every party who invokes the exercise of the jurisdiction of a court, is required to show his right to its exercise; and however full and complete the “ appellate jurisdiction” of this court may be under the constitution, yet the public policy of this State in relation to appeals, as disclosed and established by the Code, requires us not to exercise that jurisdiction in favor of a party who has not complied (or offered to comply) with the “restrictions and regulations” prescribed in section 3041. That section explicitly declares, that. “ no appeal can be taken without giving bond to supersede the execution of the judgment or decree, unless the appellant give security for the costs of such appeal, to be approved by the clerk, register, or judge of probate.”
Before the adoption of the Code, our statutes authorized the issue of a writ of error to the respective circuit and chancery courts, at any time within three years after the rendition of final judgment or decree by those courts, as matter of right, without money, bond, or security of any kind. The Code does not authorize the issue of a writ of error in any civil case. It confers the right to an appeal by section 3016; but, by section 3041, it explicity declares, that “ no appeal can be taken without giving bond to supersede the execution of the judgment or decree, unless the appellant give security for the costs of such appeal, to be approved by the clerk, register, or judge of probate.”
Bemembering that the statutes of force before the adoption of the Code never authorized an appeal without bond and
All the former decisions of this court, made since the Code went into effect, in relation to appeals, are founded upon the course of reasoning which I have above followed. And I differ from my brethren, in the opinion expressed, that their conclusion in this case does not conflict with those decisions. If the conclusion attained by my brethren in this case be correct, it annihilates the foundation and reasoning upon which only they can be supported. I adhere to the decisions heretofore made, and believe they are sustained by principle and authority. — Carey v. McDougald, 25 Ala. R. 109; King
If the motion to dismiss the appeal in this case had been made at the first term after it came here, and before joinder in error, or argument on the merits, or continuance, my brethren would have agreed with me, that the motion should be granted. But they hold that the motion now made comes too late, and that the right to make it is waived by joinder in error and argument on the merits. My opinion is, that an appeal which is invalid for want of the bond or security required by section 3041 of the Code, when it comes into this court, never can acquire validity while it is pending here; and that the right of an appellant to invoke the exercise of the “appellate jurisdiction” of this court cannot be created by the mere acts or omissions of the appellee after the case is brought into this court, but must exist before the case is brought here, and must arise from his compliance with the require1 ments of section 3041 of the Code. The legislature having prescribed in the Code the “ restrictions and regulations” which are to govern this court in the exercise of its “ appellate jurisdiction”, I cannot give my assent to a decision which arms the appellee with the power to alter the law, to defeat the public policy of the State as to appeals, and to relieve this court from its duty to obey and administer the law as enacted by the legislature. — Durousseau v. The United States, 6 Cranch, 312; Tisdale v. Gandy, 1 Dev. R. 282; Fagan v. Jacocks, 4 Dev. Rep. 264; authorities cited supra.