Waples v. Gum , 5 Del. 404 ( 1853 )

Mr. Houston moved to dismiss the writ of error, on the ground that such writ would not lie to review a judgment of the Superior Court, sitting as an appellate court.

The case was originally brought before a justice of the peace, and taken up by appeal to the Superior Court.

Mr. Layton said, that though true it is that a writ of error will not lie upon a writ of error, yet under our act of assembly the trial of cases brought into the Superior Court by appeal from a justice, is to be had just as if such cases were originally instituted there. (Const., 13, 6, § 7; Dig., 118.)

Mr. Houston replied, that the jurisdiction of justices of the peace was specially delegated, and there could be no appeal from their judgment, unless it was expressly given by statute. No appellate jurisdiction can be founded on this, unless it be expressly given.

The Chancellor said, that before the Constitution of 1792, there was no appeal from a justice's judgment. By that Constitution the convention to carry out the injunction that "trial by jury shall be as heretofore," gave the appeal and placed the case in the Superior Court, as an original case. And it is very proper that the right of appeal shall be preserved, since the enlargement of the justice's jurisdiction.

The other judges concurred in refusing the motion to dismiss the writ of error.

The case was then argued by Mr. Layton, for plaintiff in error; andMr. Houston, for the defendant in error; and the judgment below was finally affirmed.

Judgment affirmed.