Bowers v. Green

• Decision Date: 31 December 1832
• Citation: 2 Ill. 42,1 Scam. 42,1832 WL 2427
• Parties: JOHN BOWERS, plaintiff in error,v.CLARK GREEN, defendant in error.
• Court: Illinois Supreme Court

1 Scam. 42

2 Ill. 42

1832 WL 2427 (Ill.)

JOHN BOWERS, plaintiff in error,

v.CLARK GREEN, defendant in error.

Supreme Court of Illinois.

December Term, 1832.

THIS case was tried before the Hon. Thomas C. Browne, at the October term, 1832, of the Circuit Court of Jackson County.

S BREESE and A. COWLES, for the plaintiff in error.

D. J. BAKER and A. P. FIELD, for the defendant in error.

LOCKWOOD, Justice, delivered the opinion of the Court:

Green sued Bowers before a justice of the peace to recover the penalty of $5, inflicted by the 14th section of the “ Act regulating Mills and Millers, ” passed 9th February, 1827 (R. L. 452; Gale's Stat. 464), for taking more toll than is allowed by the 11th section of said act.

Green recovered before the justice, and the cause was removed by appeal to the Circuit Court of Jackson county, where the judgment of the justice was affirmed for $5. To reverse this judgment the cause is brought into this Court by writ of error.

A preliminary objection has been raised whether a writ of error will lie in a case where the recovery is under $20, exclusive of costs; and to support this objection the case of Clark v. Ross (Breese, 261), has been cited. If the decision of that case was correctly made, then the objection is well founded, and this cause ought to be dismissed for want of jurisdiction in this Court. The maxim, Stare decisis, is one of great importance in the administration of justice, and ought not to be departed from for slight or trivial causes; yet this rule has never been carried so far as to preclude Courts from investigating former decisions, when the question has not undergone repeated examination, and become well settled. Wherever the construction of a statute has been repeatedly given in the same way, or where a construction has been given and acquiesced in for a number of years, it would be manifestly improper for a court to disturb questions thus settled. But the cause of Clark v. Ross is the only case in which this Court have been called on to settle the right of parties to bring writs of error to this Court, and that decision has not, it is understood by the Court, given satisfaction to the bar.

Under these circumstances, I think it the duty of this Court to revise that decision. That decision is based upon the idea that writs of error are in their nature appeals, because the Constitution only gives this Court appellate jurisdiction, except in certain cases, and the legislature, by limiting appeals to cases where the judgment, exclusive of costs, should amount to $20, had used the word “appeals” in its broadest constitutional sense, and thereby included writs of error. Were the Court right in giving this construction to the word ““““appeals?” At common law the only mode of removing a cause from an inferior court of record to a superior court for reversal, was by writ of error, and this writ was a writ of right, which could not be denied except in capital cases. To obtain a writ of error it is necessary to apply to the clerk of the Supreme Court, and then it does not operate as a stay of execution, unless an order is obtained from a judge for that purpose. From this statement it is obvious that considerable delay would intervene before a writ of error could be obtained; and in the meantime an execution could be issued on the judgment, and a party, against whom an erroneous judgment had been given, might be put to considerable trouble and expense.

To remedy this evil it is fairly presumable that the legislature gave the additional remedy by appeal. By taking an appeal, which is done when the judgment is rendered, the effect of the judgment is entirely suspended until the appeal is decided. From this view of the subject, I am satisfied that the legislature, in authorizing parties to take “appeals,” used that term as descriptive of the mode, and only intended to give a more...