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Still more recently, it was held, that a writ of error did not lie upon the refusal of the supreme court to grant a peremptory mandamus, when applied for on motion, but that it lay, for the relator, only when judgment was pronounced after issue was joined upon plea or demurrer, on the coming in of the alternative mandamus. It was not denied that the determination was final, and settled most important rights; but the case was dismissed, because the party had elected to proceed by summary application, and was not, therefore, able to put the judgment of the court below into the shape of a formal record. (The People v. The President and Trustees of Brooklyn, 13 Wend. 130.)

But still greater difficulty has been found to exist, in fixing a rule of interpretation in respect to the provision authorizing the court of errors “ to correct and redress all errors that have happened, or may happen in the court of chancery.” The organization of the court of chancery being essentially different from that of courts of law, and the exercise of equity jurisdiction being necessarily carried on by orders and decisions during the progress of the cause, (many of them having reference to its formal proceedings, and others essentially affecting its merits,) it became eviden", at an early day, that the right of review in such cases could not, with propriety, be limited to their final determination. And yet, on the other hand, it was equally apparent, that it could not be extended to every order made in cases of that nature. Hence, the difficulty, and as the court itself has been compelled to admit, the impossibility, of (xing a rule upon the subject.

In one case, (Trustees of Huntington v. Nicoll, 3 Johns Rep. 566,) Mr. Justice Van Ness remarked, that “if it were practicable, it would be very desirable, by a decision of this court, on some proper occasion, to establish a rule on this subject, whereby the profession may hereafter be governed.” And in seven reported cases, from the period of that decision to the present, in which the question has arisen in every variety of form, the court have disclaimed the attempt to prescribe a rule and have contented themselves with exercising a discretion, as to whether they could exercise or withhold jurisdiction, acco ding to the nature of the order appealed from; and at time have intimated that their discretion, in this respect, depende upon the probable effect of the order upon the merits of the cause. (M Vickar v. Wolcott, 4 Johns. 510; Buel v. Street, 9 Johns., 443; Beach v. The Fulton Bank, 2 Wend. 225; Williamson v. Hyer, 4 Wend. 170; Chapman v. Hammersley, 4 Wend. 173; Rowley v. Van Benthuysen, 16 Wend, 369; Ro gers v. Hosack's ex’rs, 18 Wend. 319; Rogers v. Holley, 18 Wend. 350.)

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A reference to these cases will shew, that the nearest approach which has been made to a rule upon the subject, is, that a final decree may be in all cases appealed from, but that an interlocutory order, on a mere question of practice, or on a motion addressed to the mere discretion of the court, is not the subject of review. Some of the judges, it is true, have applied the test whether an interlocutory order directly touched the merits of the controversy, but have still declined ad oting that as a rule; and in one of the latest cases on the subjı t, which was most elaborately considered, Mr. Justice Bronson, in delivering the unanimous opinion of the court, hesitates to fix a rule, and expresses hijaself unprepared to say, that there can be no appeal where the or ler does not directly touch the merits. (Rowley v. Van Benthuysen, 16 Wend. 371.)

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There is a class of cases, also, arising both at law and in equity, in which a rule bas been established as to the jurisdiction of the court of errors, the application of which to the court of appeals may, at least, admit of a question. It is, that no writ of error or appeal lay to that court, from any other than an actual determination of the supreme court or the court of chancery, upon a point raised below; and this, notwithstanding the comprehensive language of the statute; wbich, as has been seen, authorized the court of errors, as it now does in respect to the court of appeals, “ to correct and redress all errors that have happened or may happen in the court of chancery." (Colden v. Knickerbacker, 2 Cowen, 31 ; Gelston v. Hoyt, 13 Jobns. 661 ; Henry v. Cuyler, 17 Johns. 469; Carmen

bell v. Stakes, 2 Wend. 145; Houghton v. Starr, 4 Wend. 175; Kane v. Whittick, 8 Wend. 230.)

The rule in question, rests upon a peculiarity of organization in the court of errors, which led that court to give a construction to the statute, not called for by its language, or even by its spirit, unless as they were both controlled by its constitutional structure.

But, as has been already observed, it is questionable, at least, whether such a construction can be put upon the act in reference to the court of appeals. The reasons for this rule are clearly stated by Chancellor Walworth, in delivering the opinion of the court of errors, in Campbell v. Stakes, 2 Wend. 145. “There is a mannifest difference to be observed,” says he, “ between the proceedings on writs of error in this court, and the proceedings of the supreme court, on writs of error to inferior tribunals. The supreme court are bound to correct all errors in the proceedings of inferior tribunals, which are brought before them, whether they relate to decisions either actually or nominally made by the court below, or to matters out of the record, usually denominated errors in fact. But, in the organization of this court, it was evidently the intention of the framers of the constitution, that it should be strictly an appellate court, for the re-examination and correction of erroneous decisions, actually made by other tribunals, upon questions actually presented to them for their determination. The provisions in the constitution, requiring the judges of the supreme court, on writs of error, to assign the reasons for their judgment, and excluding them from voting in favor of the affirmance or reversal of their judgments, are both founded upon the presumption, that they have actually passed upon the question in the court below.” And, after citing a number of cases, to show that the party may, in every case, take the opinion of the supreme court, he concludes : “ I am not aware of any possible case, in which there can be an error in the record or proceedings of the supreme court, which would afford sufficient ground for reversing their decision, here, in which the party may not,

if he applies in time, present the question directly to that court [P. & p.]

for their decisior., in the first instance. If he does so, and that court decide against him, it may then be proper for him to apply to this court, to review that decision upon a writ of error. In the case before us, the alleged error, in the finding of the jury, appeared upon the face of the record. If it forms a sufficient ground for reversing the judgment, it would have been equally available by a motion in arrest. If the party had moved in arrest, and the supreme court had considered the objection well taken, that court would have awarded a venire de novo, to supply the defect, or have permitted the plaintiff to amend the verdict, in such a manner as to correspond with the actual finding of the jury.”

From this review of the cases on the subject, it will be seen that doubts of no unimportant character exist, as to the extent of the jurisdiction of the court of appeals. If there were no other reason, therefore, for proposing to place it upon a more certain basis, the embarrassments by which it is now surrounded, would, of themselves, be sufficient. But, in our judgment, there is a still more pressing necessity for the immediate exercise of legislative discretion, in regulating the jurisdiction of this court. One of the most certain means of preventing unjust delay in the conduct of legal controversies, is to protect the court of last resort from being borne down by an unnecessary amount of litigation. It cannot be denied, that upon the successful accomplishment of the labor properly cast upon it, the beneficial operation of the whole judiciary system necessa rily depends; and no one who justly appreciates the necessity of preserving its usefulness, will hesitate to admit, that this protection is due not to the court alone, but to the paramount interests of the community.

We are far from undervaluing the right of appeal, and should be most unwilling to restrict its exercise, from any consideration of mere expediency or convenience. The purposes of justice seem to us, however, to require that some check should be imposed upon it, by which it shall be made the means of promoting substantial right, instead of being, as is too often

is, the instrument of oppression. At all events, this necessity is quite apparent, in reference to the court of last resort.

The means by which this end can be attained, consistently with a due regard to both public and private interests, have been the subject of the most careful consideration; anıl after weighing every argument in faror of and against the different plans which have been suggested, the conclusion at which we have arrived, is, 10 embody in the proposed act the principles which we now proceed to submit.

1. The title we are now considering proposes to give an appeal to the court of appeals, from the actual determinations heretofore made at a general term, by the supreme court or by the superior court or court of common pleas in the city of NewYork; first, in giving a final judgment, and on such appeal, to review any intermediate order involving the merits, and necessarily affecting the judgment; and secondly, in a final order affecting a substantial right, made in a special proceeding or upon a summary application in an action, after judgment; but withholds the right of appeal, where the action was originally commenced in a court of a justice of the peace, or in a local justices' conrt in a city. By this definition of the powers proposed to be conferred on the court of appeals, it will be perceived, that every doubt is obviated as to the right of the court to review judgments which are merely formal, and which have not undergone : consideration in the court below, and that an actual and final determipation of a matter, involving a substantial right, is made the real, as it should be the only test. While, however, it is proposed to cut off an appeal from interlocutory orders, and thus to obviate the embarrassments which have heretofore existed, in fixing a rule as to what orders of that nature are properly reviewable, care has been taken to provide, that, on an appeal from a judgment, the court may review any intermediate order involving the merits, and necessarily affecting the judgment. The right of appeal, thus conferred, being prospective, and applicable only to decisions hereafter made by the courts named, it, of course, does not interfere with the

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