Farnam v. Davis , 32 N.H. 302 ( 1855 )

Sawyer, J.

By § 2 of the act of December 31,1828, — Compiled Laws of 1830, 66, — which act was in force at the revision of the statutes in 1843, it was provided that no appeal from the judgment of a justice of the peace in any civil suit should be granted, “ unless the party appealing should enter into recognizance to the adverse party, with sufficient surety or sureties, in such sum as the justice might direct, not exceeding twenty dollars, conditioned that the appellant should pay to the appellee all such costs as the appellee might recover against him in such suit.” By the Revised Statutes this act was repealed, and in place of this provision the following was substituted : “ No appeal from the judgment of a justice of the peace shall be granted, unless the party appealing shall enter into recognizance to the adverse party, with sufficient sureties, in the sum of twenty dollars, to pay the costs which may be recovered against him.’,’ Rev. Stat., chap. 175, § 7.

The adoption of a more condensed or abridged form of expression in the revision of a statute is not of itself to be considered as indicating an intention on the part of the Legislature to introduce any change in its construction or effect. The change of phraseology in this case, from “ sufficient surety or sureties,” to “ sufficient sureties,” would seem to be a mere verbal alteration, designed to give the statute a more concise form, without altering its meaning, and especially so, when it is considered that the Legislature which enacted the change, at the same time also enacted, as a rule for the construction of statutes, that “ every word importing either the singular or plural number may extend and be applied to one or more than one person or thing.” Rev. Stat., chap 1, § 1. But the question whether by this change the Legislature intended to require that in all cases there should be more than one surety, is not perhaps to be considered as an open question. In the case of Sanborn v. Pierce, decided at the July term, 1847, in Rockingham county, it was held that the statute was to be construed as requiring at least two sureties ; and the appeal having in that case been granted, upon a recognizance with one surety only, was dismissed for that cause, and a similar decision was made in Gilman v. Bartlett, at the July term, 1848, in Hillsborough county. In neither of these cases, however, was the question raised whether the irregularity, if it is to be considered as such, in granting the appeal upon a recognizance with but one surety, is one which can be waived by the appellee. This question is now raised; and assuming that the want of two sureties is such irregularity, whatever views we might entertain upon that question, if it were now for the first time before the court, we proceed to consider the other questions presented by the case, whether the irregularity is one which the appellee may waive, and if so, whether it has been waived in this case.

The provision of the statute requiring sureties to the recognizance is wholly for the benefit of the appellee. The recognizance is his security for costs, is taken in his name, and is entirely subject to his control. He may release and discharge it, at his pleasure; and there certainly can be no good reason why he may not waive it, unless it be that -without it the court to which the appeal is taken does not obtain jurisdiction of the cause. If there be such want of jurisdiction, it is only on the ground that the requisite proceedings have not been instituted to bring the case before the court. That the jurisdiction of courts may be thus limited by particular modes prescribed for commencing or instituting the proceedings, is well settled. Such are the cases of laying out highways, which must be on petition. Pritchard v. Atkinson, 3 N. H. 335 ; Wiggin v. Exeter, 13 N. H. 304; and proceedings in bankruptcy in the District Courts of the United States; Morse v. Presby, 5 Foster 299. Cases of this character, in which the jurisdiction is restricted by particular modes of proceeding, are ordinarily those arising in .inferior courts of special and limited jurisdiction; or, if in courts of general jurisdiction, are such as fall under the exercise of some special and summary powers conferred upon them by statute, and not belonging to them as courts of general jurisdiction. And in all such cases the jurisdiction, both as to the subject matter and the parties, must be shown from the record, as everything is presumed to be without the jurisdiction which does not distinctly appear to be within it. King v. Liverpool, 4 Burrows 2244 ; 2 Lord Raymond 836 ; Id. 1310 ; Morse v. Presby, ubi sup., and cases cited. Our Court of Common Pleas, to which the appeal was taken in this case, is not an inferior court in the technical sense of that term, but a court of general jurisdiction, and its proceedings upon the appeal are according to the course of the common law. The cause is within its general jurisdiction, irrespective of the particular process by which it may be brought under its cognizance ; and it would be quite difficult to suggest any well grounded distinction in this particular as a ground for limiting the jurisdiction by the process in one case and not in the other, between the nature of the process employed by way of appeal, and that used in the case of exercising original jurisdiction by a common law writ of summons, or attachment. Both are merely processes to bring the cause under the cognizance of the court, it being within its general jurisdiction before process is instituted.

We are aware that in New-York at an early period a different doctrine was held in relation to similar appeals from the judgments of justices of the peace to their court of common pleas. 4 Cowen 80 ; Id. 540 ; 6 Cowen 592 ; 7 Cowen 423 ; Id. 468; 9 Cowen 227. In these cases it was held that the appeal-bond, given in place of the recognizance under our practice, as security to the appellee, must conform strictly to the requirements of the statute, and without such conformity the appellate court had no jurisdiction of the cause. But the correctness of this doctrine has been questioned in later times in courts of that State. In Van Dusen v. Hayward, 17 Wend. 67, cited by the counsel for the defendant, Bronson, J., in delivering the opinion of the court, says: “ This court has often had occasion to consider the sufficiency of appeal-bonds, and it has generally-been said that the appellant must comply strictly with the requirements of the statute, or he can derive no benefit from the appeal. The case, Latham v. Edgerton, 9 Cowen 227, is a very strong one against the jurisdiction of the common pleas on appeal, under any possible circumstances, where the bond is not such as the appellee has the right to require. If the question were an open one, I should be strongly disposed to consider the notice and appeal-bond in the nature of process to bring the matter before the eommon pleas; and if the appellee voluntarily appeared and proceeded to judgment, he might then be regarded as having waived any objection to the sufficiency of the bond.”

Of the soundness of this view we entertain no doubt, and it derives strong confirmation from the fact that there is no middle ground between this and the extreme view taken by the court in Latham v. Edgerton, and which necessarily results from holding the irregularity to be one going to the jurisdiction, viz., that the appellee, on that view, has the right to lie by until judgment, taking his chance of a decision in his favor; and if in this he should be disappointed, then to interpose the objection that the proceedings are void for want of jurisdiction. The unequal position in which the parties are placed by this construction, partakes too much of the character of unfairness towards the appellant to entitle it to favorable consideration. The irregularity, then, is one which may be waived by the appellee; and we think he is to be considered as having waived it, when, having had reasonable opportunity to avail himself of the objection by a motion to dismiss the appeal for that cause, he neglects to do so. The requirements of the statute for his benefit can be dispensed rvith only by his consent; but it cannot be considered unreasonable to him, and it certainly is but just to the appellant, to hold that that consent is to be understood as given when he enters his appearance at the appellate court, and suffers a continuance of the cause, without a suggestion that his rights have been disregarded in the mode of taking the appeal. Foss v. Strafford, 5 Foster 78 ; Hanson v. Hoitt, 14 N. H. 56 ; Simonds v. Parker, 1 Met. 508; Wolcott v. Mead, 12 Met. 516; Smith v. Robinson, 13 Met. 165 ; Jaques v. Saunderson, 8 Cush. 271.

The next question for consideration is, whether, upon the facts proved, the action can be maintained. The repairs which are the subject of the suit under one of the counts were not made for the defendants, nor upon their account, nor for their benefit. There is no pretence of an express promise to pay for them, and we can perceive no ground upon which the law will imply such promise. They were made by the plaintiff, under the expectation founded on the agreement of the defendants, acting in behalf of the town, for the sale of the house ; that they would enure to his benefit as the future owner of the house; and if he has not derived from them the benefit expected, it is not because of the want of authority in the defendants to máke the agreement in behalf of the town, but because, having “ changed his plans,” he preferred to relinquish all the advantage which a fulfillment of the agreement would have secured, and therefore refused on his part to fulfill it.

It is equally clear that the plaintiff has no claim against these defendants for the money, or any portion of it received by the town upon the sale of the house, both because, if the money belonged to the plaintiff, it never came into the hands of the defendants ; and because, if it were in-their hands, it is money to which he has no right in law or equity.

According to the provisions of the ease, the verdict must be set aside, and judgment rendered for the defendants for their costs.