Clendenning v. Guise

• Citation: 55 P. 447,8 Wyo. 91
• Parties: CLENDENNING v. GUISE
• Decision Date: 17 December 1898
• Court: United States State Supreme Court of Wyoming

55 P. 447

8 Wyo. 91

CLENDENNING v. GUISE

Supreme Court of Wyoming

December 17, 1898

ERROR to the District Court, Sweetwater County, HON. JESSE KNIGHT Judge.

Replevin brought by H. M. Clendenning against Frank Guise, before a justice of the peace. Judgment was rendered for plaintiff for the possession of the property, and ten (10) dollars damages for its detention, and costs of suit. Defendant took the case to the district court by petition in error, where the judgment was reversed for want of jurisdiction in the justice, and the costs of both courts adjudged against the original plaintiff. The latter prosecuted error. The material facts are stated in the opinion.

Affirmed.

John H Chiles, for plaintiff in error.

Since the adoption of the constitution, error does not lie from a justice of the peace to the district court; the only method of review authorized by the constitution, in such cases, is appeal. (Const. Art. 5, Sec. 23.) Appeals are distinguished from writs of error, in that the former subjects both the law and facts to a re-examination, while the latter is confined to a review of questions of law only. (1 Ency. L., 1st ed 615; 2 id., 2d ed., 425; 103 U.S. 611; 7 Cranch, 110; 14 Mont. 525; Black's L. Dict., 78; 2 Bouvier's L. Dict., 165.) The decision of the justice as to the sufficiency of the surety upon the undertaking, and upon the question of defendant's objection to any testimony concerning damages could not be reviewed, on error, in the absence of a bill of exceptions. (Long v. Froman, 49 Kan. 360; Winter v. Shutter, 42 id., 544; Hart v. Scruggs, 36 id., 407.)

The affidavit in replevin was subject to amendment. (Meyer v. Lane, 40 Kan. 291.) Being amendable, the justice was not without jurisdiction. When the defendant does not object to the affidavit before trial upon the merits, he can not do so upon appeal. (20 Ency. L., 1st ed., 1082; Nichols v. Standish, 48 Conn. 321; Smith v. Emerson, 16 Ind. 355; Frink v. Flanagan, 6 Ill. 35; Cobbey on Replevin, 726, 729; 1 abb. Pr. R., 248.) The justice, at any rate, had jurisdiction of the person, and the judgment for damages was not reversible, in the absence of a bill of exceptions.

No appearance for defendant in error.

POTTER, CHIEF JUSTICE. CORN, J., concurs. KNIGHT, J., did not sit.

OPINION

POTTER, CHIEF JUSTICE.

This was an action in replevin originally brought before a justice of the peace for the recovery of a certain bicycle. Judgment having been rendered for the plaintiff the defendant filed his petition in error in the district court seeking a reversal of the judgment upon three grounds; viz: (1) Error of the justice in overruling the exceptions of the defendant to plaintiff's undertaking; (2) error in assessing damages against defendant; and (3) error in finding and rendering judgment against the defendant.

In the district court, the cause being heard upon the petition in error, the judgment of the justice was reversed, and the plaintiff in error--the original defendant--was awarded judgment for costs in both courts.

The plaintiff in the suit before the justice prosecutes error to this court.

The first point urged by counsel for plaintiff in error is, that the district court erred in assuming jurisdiction to try the case upon petition in error from the justice court.

It is contended that appeal is the only method permitted by the constitution for a review by the district court of a judgment rendered by a justice of the peace, and section 23 of Art. 5 is referred to which provides, "Appeals shall lie from the final decisions of justices of the peace and police magistrates in such cases, and pursuant to such regulations as may be prescribed by law."

This constitutional provision, even if the word "appeals" is employed in its technical and restricted sense, does not in terms prohibit the review of the decisions of justices of the peace by proceedings in error. Assuming without deciding that by "appeals" is intended a certain appellate practice as distinguished from what is known in the profession as proceedings in error, the provision is an affirmative declaration that appeals shall lie from such decisions, but does not expressly or impliedly, as we think, negative the right of the Legislature, in its discretion, to provide an additional proceeding for their review. On the contrary we find in the constitution express authority for it. In the section which defines the jurisdiction of the district court the following occurs:

"They shall have such appellate jurisdiction in cases arising in justices' and other inferior courts in their respective counties as many be prescribed by law." Art. 5, Sec. 10.

The statutes expressly allow a judgment of a justice of the peace to be taken to the district court by proceedings in error.

"Any final judgment of a justice of the peace in a civil action, except as otherwise provided, may be taken to the district court of the county in which the same shall have been rendered in one of the two following ways: 1. By appeal. 2. By proceedings in error in accordance with the provisions of chapter 12, division 7, of Title 38 of the Revised Statutes of Wyoming." Laws 1895, chap. 57, page 107.

The chapter of the Revised Statutes referred to in the above act is devoted to the subject of jurisdiction and procedure in error. It is provided therein that a judgment of a justice of the peace may be reversed, vacated, or modified by the district court. Sec. 3127. That the proceedings to obtain such reversal, vacation, or modification shall be by petition in error filed in the court having power to make the same. Sec. 3131. Provision is made for a stay of execution of the judgment of a justice when such proceeding is instituted. Sec. 3142. Upon affirmance of a judgment on petition in error by the district court, a penalty judgment may be rendered. Sec. 3148. The character of judgment generally to be rendered, and the further proceedings in case of the affirmance or reversal respectively of a judgment of a justice of the peace taken on error to the district court, is regulated by the provisions of sections 3150 and 3151. Exceptions may be taken and preserved to the opinion of a justice of the peace upon any question of law arising during the trial of a cause before him. Sec. 3473.

These laws are assailed as invalid. We perceive no repugnancy between them and the constitution, for the reason, as already stated, that the latter instrument does not either expressly or by implication confine the review of the judgments of justices of the peace to that character of appellate proceedings technically known as appeals, but does, by positive declaration, confer upon the district court such appellate jurisdiction over inferior courts, including justices of the peace, as may be prescribed by law. The power of the Legislature being adequate to enact the law under which proceedings in error are taken, the courts have nothing to do with its policy, and if, as counsel conceives, the practice is "vicious, abominable, and absurd," an argument based on that theory may well be addressed to the Legislature, but can not be deemed persuasive of the construction to be accorded to plain and unequivocal constitutional or statutory expressions.

Criticism such as counsel attempts, however, is to some extent disarmed by the provisions of section 3151, which, in case of reversal, except for lack of jurisdiction on the part of the justice, requires the district court to retain the cause for trial and final judgment as in cases of appeal.

It is next contended that the district court erred in reversing the judgment of the justice and rendering judgment for the costs of both courts in favor of the plaintiff in error there, the defendant in the original case and defendant in error here.

The transcript of the justice shows in brief the following matters of substance entered upon his docket. That the plaintiff presented and filed his affidavit and undertaking, and asked that writ and summons issue against Frank Guise, the defendant, for the recovery of certain specific personal property, and the recovery of ten dollars damages. Writ and summons were issued, served, and returned. The officer's return disclosed that he had taken the property and delivered the same to the plaintiff, in default of the execution of a bond by the defendant. Both parties subsequently appeared in person and by counsel, and defendant filed and presented exceptions supported by affidavit to the sufficiency of the surety upon plaintiff's undertaking. The court overruled said exceptions, and defendant excepted to the order. Trial was thereupon proceeded with, and objection being offered to the absence of any pleading by plaintiff, he then pleaded orally, alleging his ownership of the property--one bicycle--his right to immediate possession, and a previous demand for the same. Defendant orally answered, denying each and every allegation of plaintiff's petition, and alleging the value of the bicycle to be fifty dollars. Witnesses were examined, and defendant objected to the introduction of any evidence as to damages sustained by plaintiff, for the reason that his pleading contained no allegation respecting them. The objection was overruled, to which an exception was taken. Upon consideration of the evidence the justice found that the plaintiff was the owner and entitled to the possession of the property, and had sustained ten dollars damages by the detention thereof, and rendered judgment in plaintiff's favor for the property and said damages with costs. The findings and judgment were excepted to.

In the record before the district court there did not appear a bill of exceptions, and the point is made that neither of the exceptions taken to the orders of the justice...