Hayward v. Bath , 35 N.H. 514 ( 1857 )

Perley, C. J.

The order of this court on the petition for certiorari did not in terms apply to the original petition, nor any of the proceedings upon it, except the judgment of the Common Pleas, accepting the report and establishing the highway. It is contended, however, that the legal effect of the order was to quash the whole proceedings, for the reason that this court had no power to vacate the judgment and leave the petition pending for further action in the Court of Common Pleas. This question occurred to us when that order was made, and we then thought that its effect would be limited to the judgment, and that the petition would remain for further proceedings in the Common Pleas. But the point was not then discussed at the bar, nor very fully considered by the court, and we have regarded it as an open question on the hearing of the present case. We continue, however, to be of the same opinion.

The certiorari in question was founded on a bill of exceptions, presented and allowed in the Common Pleas, and then, by the statute, made part of the record. The object of the exception and of the certiorari was to obtain redress for errors of the Common Pleas in matters of law within the jurisdiction of that court.

No one of the exceptions went on the ground that the court had proceeded irregularly, or had exceeded its jurisdiction; and we held in that case that petitioners for a highway had the right to call on the Supreme Court, by bill of exceptions, to revise and correct the legal decisions of the Common Pleas, though regularly made within the jurisdiction of that court. The writ of certiorari was awarded for error of the court in rendering judgment, accepting the report and establishing the highway, when it appeared by the bill of exceptions that incompetent evidence, bearing directly on the general merits of the cause, was received at the bearing before fbe commissioners; and the report, on account of the reception by the commissioners of the incompetent evidence, ought, as matter of law, to have ’been set aside by the Common Pleas, and the petition recommitted.

The consequences of this error extended no further than to the doings of the commissioners. They did not reach to the prior proceedings and the petition, and therefore the error would be completely rectified and the grievance complained off fully redressed, by quashing the erroneous judgment, and leaving the cause as it stood before the error was committed, to be proceeded with in the Common Pleas.

The certiorari was not awarded in that case by virtue of the general authority conferred upon this court to superintend the proceedings of inferior tribunals, and keep them within the limits of their jurisdiction, for the judgment of the Common Pleas was rendered regularly within the jurisdiction of that court; and on a common law certiorari the question whether the inferior tribunal has correctly decided a matter of law within its jurisdiction, cannot be entertained.

1 Tidd’s Practice 333, 334; Rex v. Inhabitants of Glamorganshire, 1 Ld. Raymond 580; 1 Barn. & Adol. 382, anon.; Rex v. Morley, 2 Bur. 1040, s, c; 1 Bl. Rep. 231; Burwell v. Groenvelt, 1 Ld. Raymond 213; State v. Thompson, 2 N. H, 237; Birdsall v. Phillips, 17 Wend. 467; Pringle v. Anderson, 19 Wend. 393; Johnson v. Moss, 20 Wend. 145; Wilson v. Green, 20 Wend. 189 ; Simpson v. Rhinelander, 20 Wend. 103; Ex parte The Mayor of Albany, 23 Wend. 276; The Matter Mount Morris Square, 2 Hill 14; Ex parte Hagaman, 2 Hill 415; Peo. v. Goodwin, 1 Selden 568; State v. Green, 3 Harrison (N. J.) 179; Doolittle v. Galena & Chicago Railroad Co., 14 Ill. 381; Swann v. Mayor, &c., of Cumberland, 8 Gill. 150.

The statute gives to “ any person aggrieved by any opinion, direction or judgment” of the Court of Common Pleas, “ in any action or proceeding,” the right to a bill of exceptions, and makes no distinction between causes which proceed according to the course of the common law, and those which proceed otherwise. This court have by statute exclusive jurisdiction to issue writs of error and certiorari; but no provision of any statute prescribes the remedy which an aggrieved party is to pursue, whose bill of exceptions has been filed and allowed in the Common Pleas. The form of his remedy is left to be determined by the nature of his case, according to the rules of the common law. If the proceeding is according to the course of the common law, it has been held that the remedy on a bill of exceptions, which the statute makes part of the record, is by writ of error ; if otherwise, by certiorari.

The right to file a bill of exceptions, and have it made part of the record, extends to all actions and proceedings in the Court of Common Pleas, including petitions for highways, as was held in the petition for certiorari now in' question; and the party who avails himself of this right may, it would seem, have any matter of law, that has been decided against him in the Common Pleas, revised in this court. It is said in Moore v. Sandown, 19 N. H. 100, “ it is not consistent with the practice in any case, unless some exception may exist which does not occur to us, that upon questions of law involving the rights of parties, the judgment of the Common Pleas should be final.”

But this power to revise judgments of the Common Pleas, regularly rendered within the limits of their jurisdiction, is not, as we have seen, exercised by means of a common law certiorari; for a regular judgment of the inferior tribunal, rendered within the limits of its jurisdiction, is not capable of revision, either as to matter of fact or matter of law, on a common law certiorari. ■

A certiorari, therefore, founded on a bill of exceptions, filed under our statute, to a decision of the Court of Common Pleas, regularly made within the jurisdiction of that court, cannot be regarded as a proper common law certiorari. It is founded on the statute, and though not a form of remedy prescribed by the statute, has been adopted in practice as the legal remedy, in a certain class of cases, for the party who has filed his bill of exceptions under the statute. It is in substance a statutory certio-rari; and authorities as to the effect of an order in a common law certiorari upon the proceedings in the court below, are not applicable to this case, except so far as the two proceedings are of a like character.

The intention of the statute was to give the party aggrieved by an erroneous order, opinion, or judgment of the Common Pleas, in matter of law, the means of redress by an application to the Supreme Court, founded on his bill of exceptions; and though the nature of the proceeding might in some cases require the form of the remedy to be by writ of error, and in others by certiorari, there is nothing which can lead us to suppose that the same substantial measure of redress was not intended to be given in both classes of cases.

It not unfrequently happens, when a judgment is rendered by writ of error founded on a bill of exceptions, that the merits of the cause are left undecided; as, for instance, when the error is assigned in admitting or rejecting evidence on trial by the jury. The judgment is vacated, and the issue joined in the Common Pleas remains untried. In such case, further proceedings are necessary to determine the controversy between the parties; and a new trial is had, usually in the court of errors, provided that court has jurisdiction of the cause ; otherwise, in the court below. By this course complete justice is done to the plaintiff in error, the erroneous judgment of which he complained is vacated, and the cause proceeds as if it had never been rendered; and the effect of recovering the judgment is not extended beyond a full correction of the error committed by the court below.

But if, because the nature of the suit requires the application to the Supreme Court, on a bill of exceptions, to be in the form of a petition for the writ of certiorari, the whole proceedings must be quashed for some incidental error, not going to the foundation of the cause, and the court have no power to leave the merits to be determined by further proceedings in the court below, it is quite plain that the redress in such case is widely different in substance from that which the plaintiff obtains by writ of error founded on a bill of exceptions filed under the same provision of the statute; and is, also, out of proportion to the grievance complained of. For if the error was in favor of the party prosecuting the suit, as in the present case, though the mistake might be merely incidental, and the order on certiorari leaves the merits of the cause wholly undecided, yet the prosecuting party must lose the benefit of all the antecedent proceedings, though entirely correct and regular, and be put to the unnecessary trouble and expense of commencing anew. On the other hand, if the prosecutor of the suit filed the bill of exceptions, it would be a poor redress to obtain the correction of an error committed against him, if the correction of the error necessarily required that the proceedings which he had instituted should all be quashed. It would give him no relief, except perhaps against a judgment for costs. We cannot think that this was the kind and measure of redress which the statute intended to provide for the aggrieved party on his bill of exceptions, whether the nature of his cause might require him to pursue this statutory remedy by certiorari or by writ of error.

In a case like the present, where the error complained of does not extend to the original proceeding, as the merits of the cause have not been decided, we ought, on grounds of convenience and expediency, to hold that further proceedings may be tried, unless we find ourselves concluded by authority, or see in the way some serious, practical difficulty, growing out of the nature of the cause or the constitution of the court below.

I am not aware that this point has been decided in this State. The general rule that on certiorari the court must quash or affirm the proceedings, is stated in Hopkinton v. Smith, 15 N. H. 153, and it is also said in that case that it was not perceived how the Court of Common Pleas could make an order for recommitting the petition after the proceedings were quashed. But the present question was not distinctly raised on that case, as the proceedings were not quashed, but affirmed, and that petition for certiorari does not appear to have been founded on a bill of exceptions filed and allowed under the statute. At the most, the remarks of the court can be considered as no more than a dictum.

La the report of Moore v. Sandown, 19 N. H. 93, the result of tbe judgment is stated to be that “ tbe proceedings in relation to tbe discontinuance of tbe road must be quashed.” In that case an examination of tbe record has been made, which shows that the proceedings in tbe Common Pleas, except tbe judgment, were not in fact quashed; but at tbe September term, 1848, tbe judgment rendered February term, 1846, was vacated, and tbe petition recommitted ; and at tbe February term, 1849, the commissioners made a second report against tbe discontinuance, which was accepted at tbe same term, and at September term, 1849, a judgment was rendered for costs against Sandown. In tbe Petition of Osgood et a., for a highway in Concord and Pembroke, a report of tbe committee was accepted in the Common Pleas, March term, 1839. On certiorari tbe Superior Court were of opinion that tbe judgment should be set aside, and tbe Court of Common Pleas, March term, 1840, ordered that tbe judgment should be set aside accordingly, and tbe petition be brought forward to that term, when tbe petition was again referred and confirmed. In this case of Osgood et a. v. Concord and Pembroke, no order appears on the records of tbe Superior Court for quashing the judgment of tbe Common Pleas; but the judgment was set aside in tbe Common Pleas, pursuant to the opinion of tbe Superior Court, on tbe petition for certiorari.

I have not met with any case in which tbe whole proceedings in a petition for a highway have been quashed by certiorari founded on a bill of exceptions filed in the Common Pleas, where the error of the court below consisted in some order or direction which did not go to the foundation of the cause; but the merits were left undecided. On the contrary, so far as I can find that any practice exists on the subject, the cause in such cases has proceeded in the Common Pleas after so much of the proceedings had been vacated as were affected by the error.

As a general rule, when the writ of certiorari at common law is awarded, and the record is brought up, the whole proceedings are quashed; whereas, when a judgment is reversed on error, if the cause is left undecided, and the court above has not juris diction to determine it, it remains in the court below, and proceeds there as if the erroneous judgment had not been rendered. Pinto v. Atwater, 1 Day 205; Keen v. Turner, 13 Mass. 265; Livingstone v. Rogers, 1 Caine 588; Hartshorne v. Sleght, 3 Johns. 554, 555; Arnold v. Crane, 8 Johns. 79; Winchester v. Hinsdale, 12 Conn. 88; How v. Merrill, 5 Greenl. 318; Com. of Montgomery County v. Carey, 1 Ohio State Rep. 463.

What are the reasons for this difference in the effect of reversing a judgment in error, and quashing an order or judgment on certiorari ? In England, the writ of certiorari is not awarded to quash judgments of the superior courts. Their proceedings are according to the course of the common law, and their erroneous judgments are corrected by writ of error. The writ of certiorari after judgment is awarded there for the supervision of inferior tribunals, which for the most part proceed by summary methods, and have no regular terms or continuances, but only occasional sessions appointed for the particular cause, as in the ease of coroners’ inquisitions, summary convictions by magistrates, orders for removal of paupers, orders of the poor law commissioners, the commissioners of sewers, and the commissioners of tithes, orders of town councils, &c. When such tribunals have made their order or judgment, purporting to dispose of the cause, their powers are exhausted. No court comes again at a stated term to take up the cause and proceed with it, after an erroneous order or judgment has been set aside on certiorari. There is, therefore, in such cases a practical difficulty, which has been regarded as insurmountable, in the way of setting aside a judgment or order, and leaving the cause for further proceedings.

But if the court below, as in the case of the general quarter sessions, have regular terms and continuances, this reason for quashing the whole proceedings on certiorari does not exist, and where further action in that court is necessary to determine the merits, so much only of the proceedings may be quashed as are erroneous, and the cause remitted to the court below, to enter up continuances and proceed to decide the merits, as was done in The King v. Ridgeway, 5 B. & Ald. 527. That was a prose-eution commenced before two magistrates on tbe statute against illegal combinations of workmen. Tbe defendant was convicted before tbe magistrates, and appealed to the quarter sessions, who quashed tbe conviction. On certiorari, tbe court of king’s bench quashed the order of tbe sessions, and remitted tbe cause to that court, to enter up continuances and hear tbe appeal. Áb-bot, C. J., says: “ I am of opinion that in this case tbe order of sessions is wrong, and must be quashed; and that being so, we find that the original conviction has been quashed by the sessions for informality. It is then our duty to examine, and if we cannot see any informality in it, to quash the order of sessions. But in doing so we ought not to deprive the party of his appeal on the merits, and therefore we shall, after quashing the order of the sessions, send the case back to them, to enter continuances and hear the appeal.” The King v. Neville, 2 B. & Ald. 299, is to the same point. In that case Idttledale, J., is reported to have said: “ It is a technical rule, undoubtedly, that if a record, removed by certiorari, be once filed in this court, it shall not be sent back; but that rule is not inflexible.”

It would thus seem that in England, where an erroneous order of the court below is quashed on certiorari, and the merits of the cause are left undecided, if the constitution of the court below interposes no practical difficulty, the effect of awarding the writ is limited to the erroneous order, and the cause is remitted, with instructions to proceed. And the rule, requiring the whole proceedings to be quashed, is applied only in cases where the court below has no power to take up the cause after the erroneous order has been vacated, and proceed to determine the merits.

The reason for the difference which prevails in ordinary cases between the effect of reversing a judgment on error, and awarding a writ of certiorari, when the merits of the cause are left-undecided, is this : The rvrit of error is directed to a court proceeding according to the course of the common law, with regular terms and continuances ; and in that case there is no difficulty in taking up the unfinished cause and proceeding with it; whereas the writ of certiorari is used to superintend the proceedings of tribunals which for the most part have no such terms and contrivances, and are bj their constitution incapable of resuming the cause after the writ of certiorari has been awarded. We have seen that where this reason for that distinction between the remedy by writ of error and by certiorari fails, the distinction is not recognized in practice.

It is quite plain, in case of a petition for a highway pending in the Court of Common Pleas, that there is no such ground for requiring that the whole proceedings should be quashed on cer-tiorari, when the error does not go to the foundation of the cause. The proceeding on petition for a highway is not indeed according to the course of the common law; it is not commenced by writ; there is no declaration ; usually no plea or issue, and no trial by jury; and it is held that the form of the remedy for revising the proceeding is by certiorari, and not by writ of error. But it is a cause regularly entered in the same court to which the writ of error is directed ; it stands on the records and dockets of the courts, and is continued from one regular term to another, like a suit at common law ; and there can be no more difficulty in entering up continuances, if that form should be thought necessary, and bringing it forward after the certiorari has been awarded, than in doing the same thing after a judgment has been reversed on error. The Supreme Court have no jurisdiction to determine the merits of the cause, nor have they on writ of error in any of the numerous cases where the Common Pleas have exclusive jurisdiction of suits at law.

In our practice the original record is not removed from the court below, either by writ of error or of certiorari ; a transcript is sent up with the cases. Rochester v. Roberts, 5 Foster 495. And the technical objection, that in legal understanding the record is removed to the court above, and nothing is left below to proceed upon, applies equally to both cases, and can prevail in neither. In Dyer v. Lovell, 33 Maine 260, this objection appears to have been looked upon as too trifling for serious consideration. In some jurisdictions, where the cause is removed before judgment by certiorari for further proceedings in the court above, objection Las been made that the original record remained below, and a transcript only was in fact sent up ; and to avoid this technical objection the courts have hold that, though in fact a copy only was in the court above, yet in contemplation of law it was to be regarded as the original record. Wolfe v. Horton, 8 Caine 86. In the present case we are asked to admit the fiction that the record is in the court above, when in fact it remains below, not to avoid but to raise a technical difficulty. Records with us are bound together, and entered continuously in large books, and cannot be separated and removed into other courts, as a roll may be removed from the file.

In Yermont the writ of certiorari is used, it would seem, as with us, to bring the proceedings on a petition for a highway before the Superior Court, and the object is there mainly “ to answer the objects and ends which are intended to be reached by a writ of error where that writ lies ; that is, to raise the proceedings of the inferior tribunal in matters of law.” Paine v. Leicester, 22 Vt., 98. And in Sumner v. Hartland, 25 Vt. 642, it is said by Redfield, C. J., “ We never retain any of these sessions matters in this court, but either quash them altogether, or, after reversing some erroneous judgment, remand them for further proceedings.” We infer that the practice in Yermont, on quashing an order in a road case, is to remand the cause for further proceedings, if further proceedings are necessary to determine the merits.

There is certainly no more practical difficulty in proceeding with a petition for a highway, after a judgment has been vacated in certiorari, than with a suit at law after judgment has been reversed on error. We are not encountered with the difficulty which is met in ordinary cases of a common law certiorari; and as the reason for holding that the whole proceedings must be quashed does not exist here, we think the rule should not be applied.

Our decision of this point has gone somewhat upon the ground that this was a certiorari founded upon a bill of exceptions filed under the statute. We do not wish, however, to have it inferred that in all other cases the whole proceedings must necessarily be quashed when the writ of certiorari is awarded; that is a point which we have not undertaken to decide.

The objection that certain names are improperly on the petition, cannot prevail, especially as security was offered to those of the petitioners who objected to further proceedings. If it appeared that the proceeding originated in a fraud as to those whose names are borne on the petition, we do not mean to decide that, provided the objection were seasonably made, the petition would be allowed to proceed; but no such case is before us. We understand that an objection like this was overruled in White v. Landaff, 35 N. H. 128.

It does not appear that Judge Morrison had possession of any information, confidentially communicated, which could be used to the disadvantage of his former clients, and there can be no presumption from the nature of the cause that he was possessed of such information; his own statement shows that he was not. Perhaps this court has power, on a proper application, to restrain a councillor or an attorney from acting in other courts against his former clients, when a case shall be presented which calls for such interference. Cholmondely v. Clinton, 19 Vesey 260. But this does not appear to be such a case. Robinson v. Mullet, 4 Price 354.