Stone v. Lewin , 8 Ala. 395 ( 1845 )

GOLDTHWAITE, J.

We suggested, in the recent case of Elmes v. Sutherland, supra, that it was questionable if this Court was invested with any jurisdiction when a decree is not made by the Chancellor, but is entered pro forma, by the consent of the parties, in order to have a decision here more speedily, or from any other cause. This case presents the matter of such a decree so fully, that we must now decide the question, or consider it at rest.

At the formation of our State Government, it was provided, that “the Supreme Court, except in cases otherwise directed by the constitution, shall have appellate jurisdiction only. This is to be coextensive with the State, under such restrictions and regulations, not repugnant to the constitution, as may from time ta time, be prescribed by law. . [Const. Art. 5, § 2.] It is quite unnecessary to speculate upon the reasons which induced the prohibition contained in this section, as there can be no doubt of the intention to exclude the exercise of any original jurisdiction by the Court, as a Court. Our duty certainly is, to give it the effect which its authors intended it should have, and this can only be done by refusing to entertain jurisdiction of cases which have not, in point of fact, been decided by the inferior Courts. It is quite evident, that if the consent of parlies can confer what is really original jurisdiction upon this Court, many cases will find their way here, which otherwise might not come; and it might become common to use the inferior Courts as mere offices for the preparation of cases.

In England the jurisdiction of the several Courts is not as with us, defined by a written constitution, but is chiefly ascertained from long continued usage and practice. The Court of the Master of the Rolls, though originally merely a branch of the Court of the Lord Chancellor, had gradually acquired such consideration, that Lord Elden, in Brown v. Higgs, 7 Vesey, 561, entertained serious doubts whether he was authorized to entertain an appeal from a re-hearing had by that Judge, and directed that matter to be argued before him. After hearing the argument and ascertaining that the duty was imposed, he said, «it has been thought, that in cases of this sort, the Court might formally affirm the judgment, and suffer the cause to go to the House of Lords, by reference to other cases, when it is conceived the parties mean to go to the House of Lords. But I consider it contrary to the duty of a Court of justice under any circumstances so to act. The suitors have a right to the deliberate attention and deliberate judgment of every Court, in every stage in which, according to the constitution, the cause, may proceed; and there can be no circumstances under which I should ever permit myself to say, as the the cause is to go elsewhere, I give no judgment.”

It is true, every suitor has the right to be heard ultimately, in this Court, but because this is so, it does not follow that he can come here in the first instance, or what in effect is the same thing, by consenting that the Court provided by the constitution to first hear his cause, shall decline that duty, and give effect to his consent to remove it here. We are not to be understood as implying any censure upon the Chancellor in this particular instance, as a very satisfactory reason existed why he should not determine the cause, and even if this reason was out of the way, the practice has been so common, that pro forma decrees might seem to be entirely warranted by the consent of the parties.

We have endeavored to show, that this practice is in conflict with the letter and spirit of the constitution, and earnestly hope that it may be entirely eradicated, as it is frequently important to a deliberate and correct examination of the cause in this Court, that it should have received a careful examination in the subordinate Courts. It is only when a cause is thus examined in the Court of original jurisdiction, that the many mistakes of the parties can be corrected, deficiencies supplied, and new views presented. If this examination is deferred until the cause comes into the appellate Court, there can, -in most cases, be neither amendment or revision of the evidence, or frame of the proceedings, and great injustice may result to suitors. The cause now before us, is an illustration of the evil of this practice, as no evidence was taken to sustain the bill, and the reversal of the Chancellor’s decree would conclude the complainant, when if the same deficiency had been disclosed to him, he might have exercised his discretion in permitting the party to take testimony.

The parties were probably induced to the course taken here by the circumstance that the presiding Chancellor had been of counsel for one of them, previous to his taking the office, but this cannot give the Court jurisdiction. If this matter stands in the way of a decision, a change of venue could have been had under the statute. [Clay’s Dig. 356, § 73.]

We have had some difficulty, whether a reversal of the decree, or a dismissal of the writ of error, is proper under the circumstances, as we find it stated to have been held, by the House of Lords, in Blundell v. Macartney, 2 Ridge Part C. 557, that a decision founded on an order made by consent, will not be reversed. We have not access to that decision to ascertain its precise.extent, but think it would be going entirely too far to say, the parties are concluded by their consent to thisproforma decree. W e think the proper course is to dismiss the writ of error, and the party can then apply to the Chancellor to set aside the pro forma decree, as unwarranted, and the cause will then proceed to its final termination.

Writ of error dismissed.