Hartshorn v. Dawson ( 1878 )

Leland, J.

There seems to be an insuperable difficulty in the way of a decision of the question presented.

The Appellate Court, as we understand the statute, has no jurisdiction in common law suits involving a franchise or freehold. Though the Supreme Court has lately held that all chancery causes go to the Supreme Court by the way of the Aprjellate Court only, and has dismissed appeals in such cases for that reason, we are informed that suits at common law of that kind, as well as criminal causes, are considered and determined by the Supreme Court.

It seems clear to us that an action of ejectment now, however it may have been once, directly involves the title to real estate. Rev. Stat. of 1877, Sec. 34, p. 439.

It is true, that by one of those legislative inaccuracies which a higher degree of care might have prevented, it is untruly assumed in section 89 (88), on page 746, Rev. Stat. of 1877, that appellant or plaintiffs in error may exercise an election in taking common law cases involving a freehold, and criminal cases, to the Supreme Court, and also in section 91 (90), that an appeal lies from the Appellate to the Supreme.Court in such cases. There is, however, no such election between the Appellate and Supreme Court provided for, nor is there any way provided for that class of cases going to the Appellate Court from a Circuit Court. On the contrary, in section 25 (8), on p. 323, Rev. Stat. of 1877, it is expressly enacted that the Appellate Court has not, but that the Supreme Court has, appellate jurisdiction in all such cases. The mistake probably occurred by reason of the Practice Act having been framed to fit an Appellate Court bill, and the latter having been changed, and the former not having been adjusted to it after the change; so that probably the last intention of the writer of the acts was expressed in the Appellate Court Act and not in the Practice Act.

"What the last intention of the legislature was, is more difficult to conjecture. We are not disposed to treat the incorrect assumption in the Practice Act as controlling the express words in the Appellate Court Act, which actually confer the jurisdiction upon the Supreme and Appellate Courts, respectively, without any ambiguity. We have no doubt, this case not being a chancery case, mentioned in Sec. 88 of the Practice Act, should go directly to the Supreme Court, under the express language of section 8 of the Appellate Court Act, and not via the Appellate Court, like the chancery cases mentioned in said Sec. 88. The expression “ chancery cases,” should exclude common law and criminal cases, under the maxim that the expression of one excludes the other. If this parting of law and chancery is an unexpected one to the members of the last legislature, let the next one bring the parties together, at its approaching session; and we hope, also, that the law will be made a little more clear in some rather obscure places.

For these reasons we feel compelled to dismiss the appeal, for want of jurisdiction.

Dismissed.^*

Pillsbtjby, J., took no part in this decision.

* For contrary opinion as to jurisdiction, see post p. 189.