Mann v. Young , 1 Wash. Terr. 454 ( 1874 )

Opinion by

Greene, Associate Justice.

We will not listen to argument on this motion to strike another motion from the files. True economy forbids piling one motion on another in this way. If a motion will lie to strike one motion from the files, another motion will lie to strike that from the files, and another to strike that off, and so on ad libitum, the whole cob-honse of them to be unpiled again, in reverse order, like the house that Jack built, wasting records, delaying business, vexing clients and accumulating costs.

All that could be urged in support of this motion can be urged in opposition to the original motion.

Motion denied, with costs.

Motion to strike evidence.

Opinion by

Greene, Associate Justice.

The evidence sought to be stricken out of this motion is not made part of the record by bill of exceptions. In denying the motion to dismiss the writ of error in this cause, we have felt ourselves obliged to hold, that under section 480 of the Civil Practice Act, we can re-examine no equity cause unless for error in law, and that evidence cannot be brought from the court below, in such a case, unless by bill of exceptions. As this evidence is in no way made part of the record, the motion is allowed.

Motion to dismiss writ.

Opinion by

G-beene, Associate Justice.

The defendant moves to dismiss this writ of error, because this cause being a suit in chancery no writ of error lies herein.

JSTo question is made but that this case is of chancery jurisdiction. And it has been brought here, if at all, by the writ of error to which objection is by this motion made.

The writ, so objected to, is sued out conformably to Section 430, of the Civil Practice act of 1873, as construed together with Section 445 of the same act.

Section 430 provides that “ every final judgment, order or decision of a District court in a civil action, may be re-examined upon a writ of error in the Supreme court for error in law.”

■ Section 445 provides a statutory appeal from a judgment, to be rendered in form, only in certain cases, but not to be executecl till final decision of the cause. We are of opinion that .these two sections are intended by the legislature to regulate the practice in taking’ cases of the class called civil actions in the Civil Practice act, up from the District court to the Supreme court, and to define and limit by such regulation, the use and application of the forms and terms, writs of error, and 'appeals. Under these sections, it is intended that no appeal shall lie, and no proceeding for review shall be denominated an appeal, save the statutory proceeding defined and applied by the provisions of section 445; while it is also intended that a writ of error shall be so amplified in uses as to bring up, not merely causes of common law, but also those of equity jurisdiction. This intention of the legislature is in harmony with the whole spirit of the Civil Practice act, and particularly with its second section which reduces all actions under the act for the enforcement or protection of private rights and the redress of private wrongs to one form, called a civil action.

As to the power of the legislature to carry out by Section 430, their intention therein expressed, to have a process called writ of error, as well avail for the review of an equity as a law decision, there could not be serious doubt if the writ of error, so called, were by that section to operate in an equity cause substantially as an appeal in chancery. But an inspection of Section 430 shows that the process therein mentioned -is only to open a cause in the Supreme court for re-examination upon error in law. A chancery cause would therefore come up to this court, not as upon appeal before the passage of that s’ection —facts and law all open to be passed upon de novo — but as a common law action heretofore came up, re examinable only for error in law. Evidently, the writ of error of Section 430, when applied to a chancery case, is not in substance an appeal as known to equity procedure, and is not what was intended by the Organic Act of the territory, to be preserved in substance for the review of equity causes. And the section must be held void, as going beyond the power.to regulate, given the legislature in the Organic Act, unless since that act, congress may have so extended the power’, or affirmed the act of the legislature, as to make valid the procedure intended by Section 430 for chancery causes.

Congress has, however, by Section 1, of the act approved April 7, 1874, entitled “ An act concerning the practice in territorial courts and appeals therefrom,” confirmed the several codes and rules of practice adopted in the respective territories, in so far as they authorize a mingling of law and chancery jurisdiction or a uniform course of proceeding in all cases, whether legal or equitable.

Section 430 is designed to authorize a uniform mode of proceeding in legal and equitable cases. So far as it does so, its provisions are confirmed.

Though in obtaining this uniformity, the legislature has so provided as to preclude this court as a court of equity from considering facts formerly open to consideration, further than as made part of the record by bill of exceptions, and as foundation for a-re-examination for error in law, and though such provision may be argued to go beyond the authorizing a uniform course of proceeding, and by unnecessarily substituting one substantive thing for another substantive thing, to fall without the operation of the confirmative act of congress; yet we incline to hold otherwise. And, in this opinion, we are strengthened by provisions of the same confirmative act relative to the review of cases from the territories in the Supreme court of the United States.

The second section of the act of congress distributes all territorial cases for review in the United States Supreme court, into two exhaustive classes.

1. Oases of trial by jury, and

2. All other cases.

Appellate jurisdiction of cases of trial by jury is to be exercised by writ of error, and of all other cases by appeal. But the appeal so called is substantially a proceeding rather by writ of error than by technical appeal; for under it no evidence goes up, but only a statement of facts in the nature of a special verdict, and the rulings of the court on the admission or rejection of evidence when excepted to. In this confirmative act then, congress expressly provides that the Supreme court of the United States, shall in equity causes, review only such matter as under Section 430 of our code, would in equity causes, by writ of error, be brought before this court for review, and seems directly to contemplate that in the court of record where the case is first heard, a statement of facts in the nature of a special verdict shall be made, and exceptions to rulings on evidence saved preparatory to review in the appellate court, no otherwise than as a ease at law. This is exactly agreeable to the practice marked out by our legislature in Section 430.

Motion denied.