Teller v. Wetherell

• Decision Date: 16 November 1858
• Citation: 6 Mich. 46
• Court: Michigan Supreme Court
• Parties: Pierre Teller v. John P. Wetherell and another

6 Mich. 46

Pierre Teller v. John P. Wetherell and another

Supreme Court of Michigan

November 16, 1858

Heard October 23, 1858

Motion to quash assignment of errors, and to dismiss the writ of error.

Defendant's motion to quash the assignment of errors, and to dismiss the writ of error denied.

D. B Duffield, for the motion.

A Russell, contra.

OPINION

Manning J.:

The defendant's motion is to quash the assignment of errors, and to dismiss the writ of error.

The error assigned is one of fact, viz., the death of John P. Wetherell before the suit was brought.

The motion is placed on several different grounds:

1st. A want of jurisdiction, in this court, of errors of fact.

2d. That errors of fact are cognizable only in the court rendering the judgment, which in this case is the Wayne Circuit Court.

3d. That errors of fact can not be assigned on the writ of error in this case, which is a writ for errors of law, and not for errors of fact.

In support of the first ground, it is urged this court is a court of appellate jurisdiction, and therefore can not, on a writ of error, hear and determine any question that was not before the court below, and could not have been heard and determined by it. And we have been referred to adjudications in the state of New York on the jurisdiction of the late Court of Errors of that state, and to the English Exchequer Chamber, and house of lords, in which it is said errors of fact can not be assigned on a writ of error. There would be much force in the argument if this court was an appellate court only. It has original, as well as appellate, jurisdiction given to it by the constitution. Section three of article six is in these words: "The Supreme Court shall have a general superintending control over all inferior courts, and shall have power to issue writs of error, habeas corpus, mandamus, quo warranto, procedendo, and other original and remedial writs, and to hear and determine the same. In all other cases it shall have appellate jurisdiction only."

It was further said on the argument, that the legislature had made no provision for the trial in this court of issues of fact, except in cases of informations in the nature of a quo warranto, and that the court has no means of trying an issue of fact in error. The jurisdiction of writs of error is plenary as given by the constitution; it extends to all errors--to errors of fact as well as of law--and stands in need of no legislative action to make it operative. The legislature may regulate the proceedings and practice of the court, but this is in no way essential to the exercise of the power. In the absence of legislation, the constitution, in giving the power unconditionally, impliedly gives all the common law means of executing it. If necessary, a venire may be issued for a jury to try the issue of fact in this court, or it may be sent to the proper circuit for trial. The same objection was taken in this court, as organized under the old constitution, or an information in the nature of a quo warranto against the Erie & Kalamazoo Railroad, and it was held that the court might issue a venire to try an issue of fact, if one should be formed in the case.

This was before the statute for the trial of issues of fact in cases of information, referred to, was passed. In 6 Wend. 327, the Court of Errors of the state of New York, refused to permit an assignment of errors in fact, on the ground of want of jurisdiction; and it is put on that ground in 10 Wend. 51, where the chancellor says the plaintiff should have brought a writ coram vobis in the Supreme Court. A want of jurisdiction, we presume, is the true reason why errors of fact can not be assigned in the Exchequer Chamber or house of lords, and not the one sometimes to be found in the books, viz., that they can not try an issue of fact. A release of errors may be pleaded in either of these courts, and there must be some way of trying it when the truth of the plea is put in issue.

2d. As to the jurisdiction of the Circuit Court. The constitution and statutes defining and limiting its jurisdiction do not give it power in any case to issue a writ of error, and without this power, a writ of error coram vobis, issued by that court, would be void: 20 Johns. 22; 14 Ibid. 422. And if it had the power, it would not oust this court of its jurisdiction.

3d. The next objection is that errors of fact can not be assigned on the writ of error in this case, because, it is said, the writ is one for errors of law, and not for errors of fact. This objection goes on the ground that errors of fact can not be assigned on the common writ of error. We have no doubt they may be assigned on such writ, when the court has jurisdiction of this class of errors as well as of errors of law: Binns v. Pratt, 2 Chit. R., 369 (18 E.C.L. 109); and Castledine v. Mundy, 4 B. & Adol., 90 (24 E.C.L. 30), are writs of error in the King's Bench, on judgments of the Common Pleas, in which errors of fact were assigned, and sustained by the court. And Maynard v. Downer, 13 Wend. 575, Camp v. Bennett, 16 Wend. 48, and Arnold v. Sanford, 14 Johns. 417, are writs of error in the Supreme Court of the state of New York, on judgments of inferior courts, for errors of fact. If this class of errors could be corrected only on...