Valentine v. Malone

• Citation: 257 N.W. 900,269 Mich. 619
• Decision Date: 11 December 1934
• Docket Number: April Term, 1934.,No. 90,90
• Parties: VALENTINE v. MALONE.
• Court: Supreme Court of Michigan

269 Mich. 619

257 N.W. 900

VALENTINE

v.MALONE.

No. 90, April Term, 1934.

Supreme Court of Michigan.

Dec. 11, 1934.

Suit by Charles M. Valentine against Emma Malone. Judgment for plaintiff, and defendant appeals.

Reversed, and new trial granted.

Appeal from Circuit Court, Wayne County; John A. Boyne, acting judge.

Argued before the Entire Bench.

Howard D. Brown, of Detroit (George H. Cary, of Detroit, of counsel), for appellant.

J. R. Doss, of Detroit, (Lightner, Hanley, Crawford, Sweeny & Dodd, of Detroit, of counsel), for appellee.

POTTER, Justice.

Plaintiff brought suit to recover damages for injuries resulting from being struck by defendant's automobile driven by her daughter. The accident occurred in Detroit, on Woodward avenue, at its intersection with Fort street, September 20, 1932, about 1 a. m. The case was tried before the court without a jury, judgment rendered for plaintiff, and defendant appeals. Four questions are said to be involved; defendant claiming:

1. Plaintiff was guilty of contributory negligence;

2. The preponderance of evidence shows plaintiff was guilty of contributory negligence;

3. The trial court erred in relying upon his personal observations made at the scene of the accident after the trial for the evidence in the case; and

4. A preponderance of the evidence indicates plaintiff was intoxicated and shows he was contributorily negligent.

Section 11 of Michigan Court Rule 37 provides:

‘When an action at law is tried by the court without a jury:--

‘(a) The provisions of section 14159 of the Compiled Laws of 1929, or amendments thereto or other similar law, relating to the taking of testimony in equity cases, shall be applicable.

‘(b) No special findings shall be required, but it shall be sufficient for the trial judge to find generally for or against the several parties.

‘(c) The trial judge shall sign and file, or dictate to the stenographer, an opinion in which he shall set forth his decision and the substance of the judgment with a concise statement of his reasons therefor, and where he awards damages, the manner in which he has determined the amount.

‘(d) No exceptions need be taken to any finding, decision or judgment.’

Rule 64 provides: ‘Upon appeal to the Supreme Court from a judgment in an action at law tried without a jury, such judgment may be affirmed or reversed, the cause remanded with directions, or a new trial ordered. Appellant may assign as error that the judgment is against the preponderance of the evidence; but on appeals in civil cases error cannot be assigned for total lack of evidence on a material question unless such lack of evidence has been called to the attention of the court during the trial on or motion for a new trial.’

The consideration of this case on appeal directly involves the exercise by this court of power which it has no right to exercise.

The constitutional grant of jurisdiction to this court confers both original and appellate jurisdiction. There is a plain distinction between the two. The language of the constitutional grant is: ‘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.’ Section 4, art. 7, Const. of Mich. 1908.

The Constitution of the United States provides: ‘In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction,’ etc. Paragraph 2, § 2, art. 3.

Construing this language in Marbury v. Madison, 1 Cranch, 137, 174, 2 L. Ed. 60, it was said: ‘If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance. * * * The plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original.’

If the reasoning of Marbury v. Madison is sound, neither the Legislature by statute, nor this court by rule, may provide for a change in the constitutional apportionment of jurisdiction made by the people. Section 4, art. 7 of the Michigan Constitution, above quoted.

This court has original jurisdiction to review cases by writ of error. The rules above quoted attempt to confer appellate jurisdiction on this court where the Constitution says its jurisdiction to review by writ of error is original. There is a fundamental difference between a writ of error and an appeal.

‘An appeal is a process of civil law origin, and removes a cause entirely; subjecting the fact, as well as the law, to a review and retrial: but a writ of error is a process of common-law origin, and it removes nothing for re-examination, but the law.’ Wiscart v. D'Auchy, 3 Dall. 321, 327, 1 L. Ed. 619.

An appeal has no analogy to a writ of error. Appeals are inquisitorial, of civil law origin, not fixed by the Constitution, existing only by statute, and may be modified, amended, or abolished in the discretion of the Legislature. They operate on persons, remove questions of fact to the appellate court, where there is a trial de novo of the entire case begun below, which is continued for retrial in this court. Writs of error are individualistic, originated at common law, where the controversial system of trial was in vogue, are recognized and guaranteed by the Constitution, and are not subject to legislative change. A writ of error institutes a new suit. It is an exercise of original jurisdiction by the court. It brings up the record below for review on errors alleged to be therein to see if the trial court proceeded according to law. If it did so proceed, the finding of the triers of the facts is conclusive. If error was committed in the proceedings of the trial court a new trial may be awarded, if there are facts in dispute to be determined by fact triers. A writ of error lies to review cases proceeding according to the course of the common law, and prior to the 1931 rules of this court judgments rendered in proceedings according to the course of the common law could be reviewed only by writ of error.

Much may be claimed for Act No. 27 of the Public Acts of 1929, but that act confers no power or authority upon this court except in relation to those cases where its jurisdiction is appellate only. Its original jurisdiction is fixed, conferred, and defined by the Constitution and was purposely placed beyond legislative tinkering or regulatory modification by the court. Unless the right of appeal is conferred by Constitution or statute it does not exist. J. F. Hartz Co. v. Lukaszcewski, 200 Mich. 230, 167 N. W. 18;Harvey v. Pealer, 63 Mich. 573,30 N. W. 188;Messenger v. Teagan, 106 Mich. 654, 64 N. W. 499;Mitchell v. Bay Probate Judge, 155 Mich. 550, 119 N. W. 916;Echlin v. Canvasser, 239 Mich. 116, 214 N. W. 161. The granting and regulation of appeals by the Legislature is an exercise of legislative power, to provide for the exercise by this court of its appellate jurisdiction, especially conferred by the Constitution; but the Legislature is not omnipotent. It cannot abdicate the powers expressly reposed in it by the people through the Constitution. It cannot tie its own hands. As said by Mr. Justice Cooley: ‘One of the settled maxims in constitutional law is that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the state has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.’ Cooley's Constitutional Limitations (6th Ed.) p. 137.

It is absurd to contend that by Act No. 27, Pub. Acts 1929, the Legislature delegated to this court power to set aside or abrogate legislative enactments, overturn the Constitution, and thwart the will of the people as expressed therein, by declaring it shall exercise appellate jurisdiction in cases where the Constitution has declared its jurisdiction is original.

If we dispose of this case on the so-called ‘appeal,’ as if it were regularly here on writ of error, we may not assume to pass upon the evidence.

‘Where a case is tried by the court, it is the exclusive province of the judge to pass upon the testimony, and to draw inferences therefrom; and, when findings of fact proposed by a party are refused, such refusal is not subject to review in this court.’ Hogle v. Meyering, 161 Mich. 472, 126 N. W. 1063, 1067.

‘We cannot interfere with the action of the trial judge in this respect. It is his exclusive province to pass upon the testimony, and draw the inferences therefrom. His conclusions as to its weight and bearing are not reviewable in ...