Etheridge v. Hall , 7 Port. 47 ( 1838 )

GOLDTHWAITE, J.

— If the motion to quash the proceedings, is to be considered in any other aspect than as an answer to the rule to shew cause, the course pursued would be considered as most irregular; but this we presume was the view taken of it by the court below, and such we think was the-proper consideration to be given it.

The County court, as an inferior tribunal, is unquestionably subject in all its acts to the direct supervision and control of the Circuit court, which to it is a superior and appellate tribunal; and independent of any other legislation, than that which establishes this relation, it might be asserted that the power .existed in the latter, to compel, the former to perform all the acts, by reason of which, such appellate jurisdiction would be rendered effectual; but the direct legislation on this subject divests it of all manner of doubt.

By the tenth section of the act of eighteen hundred and seven, (Digest, 243, s. 19,) the territorial judges, and every one of them, are invested with power and authority, as often as there may be occasion, to issue /forth writs of error, certiorari, and habeas corpus, and all- other remedial and other writs and process, returnable to either of the Circuit courts, and which are grántablc by the said judges, by virtue of their oíiices. The third section of the act of eighteen hundred and nineteen, (Dig. 243, s. 23,) transfers the- jurisdiction of the territorial judges to the Circuit courts, in all casfes excé'pt otherwise directed by that or some other act; or where such jurisdiction may be inconsistent or repugnant with the present form of government. Under these acts, it is clear that the Circuit court has the power to issue the writ of mandamus, unless it can be shewn that it is not a remedial writ, or that it is repugnant to the present form of government. The latter has-riot been attempted, and to show the former,' a slight examination of prniciple and authority will suffice.

The sixth section of the act of eighteen hundred and fourteen, (Dig. 254, s. 5,) gives the right to either party, in a civil case, to have his bill of exceptions signed and sealed. If refused, it is a denial of justice; and although a penalty is inflicted on the judge refusing to certify a bill of exceptions,'which truly states the facts, the party as to the partipular case is without remedy, unless some court can interfere and compel the judge to perform* what the statute has declared to be his duty. Every suitor has the right .to have his suit decided by the appellate courts, on all the questions which can arise in the course of it, and he cannot be denied this, and turned for relief to an action against the judge who' has deprived him of it. If an inferior court will not render judgment on a verdict, it can be compelled to do so by mandamus—Brock vs Evans, et. ux. (Strange, 113;) Rex vs Tod, (Strange, 530;) and tlicrc seems to be no distinction, in principle, between sucli a case, and tho refusal to sign a bill of exceptions. But the cases are numerous to skew tile very matter in question—People vs Judges of West Chester, (2 John. cases, 118;) People vs Judges of Washington, (1 Caine’s, 511;) Sykes vs Ransom, (8 John. 279.) This court also, in the case of the State vs the Commissioners of Roads of Talladega county, (3 Porter, 412,) recognized, as well settled, tine principle, that a mandamus would lie to enforce a legal right. Wre consider it as clear, that the Circuit court has jurisdiction in such a case, as this to award a mandamus.

The objections to the issuing of this writ, assumed by the second and third reasons of the defendant are not well founded, and cannot be sustained. It does not follow, because the law has constituted the defendant the judge of the correctness of the facts, stated in a bill of exceptions, that he will be permitted to reject one, which properly presents the case. If the defendant had by his return or answer to the rule, given the court to understand that the bill of exceptions tendered, did not present the facts truly, or that the exceptions had not been taken at the proper time, or in a regular manner, the case would have assumed a very different aspect; and under such circumstances it would have been right to refuse the mandamus—Mauchum vs Austin, (5 Day, 233;) the People vs Judges of West Chester, (2 John. cases, 118;) Middlebury vs Collins, (9 John. 345.) Neither is it any answer to the rule, that the defendant is answerable in another way, by indictment or impeachment; because a conviction or removal from office of the defendant, will not restore the plaintiff to the right which the law accords to him. The general rule, that this writ will not be allowed when the party has another remedy, must be understood to relate to a specific remedy, which will place the party in the same situation as ho was before the act complained of—Rex vs Archbishop of Canterbury, (15 East. 117;) King vs Justices of Kent, (14 East. 261;) King vs Bishop of Chester, (1 Term. R. 396;) People vs Mayor, &c. of New York, (10 Wendell, 393;) Hull vs Sup. of Oneida, (19 John. 259.)

But it is insisted that the plaintiff, under the third section of the act of eighteen hundred and twenty-six, (Dig. 254, s. 5,) had a specific mode pointed out, by which he was enabled to place himself in the same condition as if the bill of exceptions had been signed and sealed. This, if so, presents a sufficient reason why the mandamus should have been refused ; but an examination of this section will show, that this could not be the case. It provides “ that in all cases in which the judge of an inferior court shall fail or refuse to certify any exception taken on the trial of any cause, it shall be lawful, for the Supreme court to receive such evidence of the exception as may be satisfactory to it, and to try the cause in the same manner as if the exception had been certified by the judge who tried the said cause.” Previous decisions of this court have settled the practice, under this statute, and that it is necessary to prove the exceptions in term time, after notice given to the opposite party — Tom-beckbee Bank vs Malone, (1 Stewart, 269;) Perkins vs Harper, (2 Stewart, 477.) In this case, the plaintiff could not proceed under this statute, because the court had adjourned before he was informed his bill of exceptions would not be signed, and according to the case presented in the petition, the judge had promised to sign it after the adjournment.

We do not wish to be considered as expressing the opinion, that the practice of signing bills of exceptions, after the termination of the court, is proper ; but cases may exist in which it is necessary to pursue this course, as it is not unfrequent, that sufficient time is not allowed to enable a judge to examine them during the term; or counsel may be then too much engaged to prepare them; but it never should be done when resisted by the opposite party at the time the exceptions are taken. In this case, we are informed by the petition that the delay was caused by the request of the judge, and under an assurance that it should be signed after the . adjournment of the court — and to allow him now to refuse without sufficient cause, would deprive the plaintiff of a right, secured to him by law.

It is, however, insisted, that the decision of the Circuit court,’if erroneous, cannot be reversed in this court, as the granting or refusing the writ of mandamus is always within the discretion of the court. Whenever a suiter is entitled to a right which is withheld from him by the decision of a court, it can scarcely be said to be a mere matter of discretion; which is understood to be the action of the court on such matters as are not demanda-ble of right, but arc accorded to parties to advance tho justice of the casé. The right of the plaintiff to the writ of mandamus is of the same nature as that, which he had to his hill of exceptions; and its denial, without, cause, would he equally an infraction of the law. It is said by chancellor Walworth, in the, case of ex parte Negus, (10 Wend. 34,) that a writ of errdr will'not lie on the denial of a mandamus or prohibition, and that it is only hy virtue of a statute, that the judgment rendered on such writs can be removed, for error, in.thc English courts; and that it is yet an open question in these courts, whether the same rule does not prevail as to writs, of habeas corpus. ' In New York, it has been held that a writ of error will lie on the refusal to grant a writ of habeas corpus—Yates vs the People, (6 John. 402.) Whatever may be the rule .adopted by the English courts on this subject, we feel warranted, by the decision last cited,in deciding, that there is ño reasonable distinction' existing between the judgment of the court, refusing to grant a writ, and the one rendered on it; for the rights of the citisen may be as much'prejudiced by a refusal to render him the means of attaining justice, as by an incorrect judgment. In the case of the State vs Commissioners of Talladega, (3 Porter, 416,) there was a denial of a mandamus, and the judgment, was removed to this court by writ of error, but the question was not made, whether .the writ was properly issued. If the -judgment of the Circuit court is to be, considered as final oh the subject matter of the petition, there can be no doubt of the authority ofthjs court to revise its determination, — and we can arrive at no other conclusion. Wc are daily- in the practice of reviving judgments rendered on motions to quash ordinary writs and attachments, which are certainly not more final in their character, than is the one we are now considering. We conclude, then, that the judgment rendered in this case is such a final judgment as gives this court jurisdiction on a writ of error, and from what we have before said, it follows that it must be reversed; and the case is remanded, with directions to the Circuit court to proceed in the cause, and issue the writ prayed for, unless sufficient cause be shewn by the defendant against it.