Poole, Gilliam & Co. v. Seney

Rued, J\,

dissenting. — I am not able to give my assent to the conclusion reached by the majority of the court in these causes. The jurisdiction of this court is defined by section four of article five of the constitution of the state as follows: “The supreme court shall have appellate jurisdiction only in eases in chancery, and shall constitute a court for the correction of errors at law, under such restrictions as the general assembly may by law prescribe.” The actions are at law, and under this definition of our jurisdiction we have power only to review the rulings and judgments of the district court, and reverse such as are found to be erroneous. It is conceded by the majority that the ruling of the district court in question was not erroneous. The court held that the judgment of a court of competent jurisdiction, which had not been reversed or appealed from, was conclusive on the parties as to the matters involved in the issue on which it was reversed. The correctness of this ruling would not be questioned anywhere; the majority say it is right. But the theory upon which they reverse the ruling is that by reason of facts which have transpired since it was made, by the appeal and the reversal of the judgment, it is manifestly inequitable and unjust that plaintiff should be permitted to retain the benefit of it. T submit that in reversing the judgment on this ground we are exercising an original instead of an appellate jurisdiction. "We reverse the judgment, not because of any error disclosed by the record, but because of facts which were neither pleaded nor proved in the court below, and which had no existence at the time of the trial, and which we import into the case for the purpose of affording a ground of reversal. I am convinced that the reversal, on the ground on which it is placed by the majority, cannot be attained by the exercise of any power possessed by this court.