Robertson v. Southerland , 22 App. D.C. 595 ( 1903 )

Mr. Justice Shepard

delivered the opinion of the Court:

The appellant, Powhatan W. Robertson, as plaintiff, sued the appellee, Leonidas B. Southerland, in a justice’s court upon a lease, — one instalment under which was then due and unpaid, and obtained a writ of attachment upon an affidavit charging that plaintiff had “a tacit lien upon the personal chattels of the defendant, and that the defendant is about to abscond or permanently remove from the District of Columbia, or to sell all or some part of said chattels.”

The writ was executed, and the defendant moved to quash because the affidavit stated no sufficient ground for the attachment. He expressly denied that he was about to abscond or remove permanently from the District or to sell all or any part of said chattels. This denial was supported by an affidavit.

The attachment was quashed, and the plaintiff appealed therefrom to the supreme court of the District.

In that court defendant’s motion to dismiss on the ground that the order was not final and therefore could not be appealed therefrom was sustained, and the papers were ordered to be returned to the justice of the peace with direction for further proceeding’s in the cause according to law.

The plaintiff has appealed from that order to this court.

The appellee has moved to dismiss this appeal on the ground that the order of the justice of the peace quashing the attachment was an interlocutory, and not a final, order, under D. C. Code, § 30, which allows an appeal to the supreme court of the District in cases where the debt, demand, or value of personal property claimed exceeds $5 to “either party who may think himself aggrieved by the judgment or other final order of a justice of the peace,” etc.

Where an appeal from a justice’s court shall be entertained, the case is to be heard de novo, and trial may then be had by jury. Code, § 80.

■ Where jurisdiction is entertained in a case appealed, and a trial had, a further appeal can be had to this court.

The question whether the order quashing the attachment was a final order under a proper construction of § 30 aforesaid is an interesting and important one, which we think we ought not to determine upon this record.

If we should sustain the appellant’s contention, and entertain this appeal, he could obtain no benefit thereby. On the contrary, he might sustain serious detriment, because we could not, in such event, render a judgment that would have the effect to correct the error, if such it was, of the justice of the peace in quashing the attachment upon an issue of fact.

There was no hearing, in the intermediate court, of the facts upon which the right to maintain the attachment depended. Consequently, there is nothing in the record by which we could determine that question, -were we to entertain the appeal.

The court below, having refused appellant a hearing because it was of the opinion that it had no jurisdiction in the premises, all that we could do, upon a proper application, would be to compel it to hear the cause, if satisfied that it was its duty to so do.

In a case like this, at least, where the appeal is futile because the matter for ultimate determination depends upon matters of fact as well as law, the proper remedy would be through proceedings by mandamus to compel a hearing.

Without intimating any opinion upon the question whether - the order of the justice of tire peace quashing the attachment was an appealable one, our conclusion is, for the reasons given, that this appeal must be dismissed with costs; and it is so ordered.

Dismissed.