Breese v. Williams

20 Johns. 280

• Court: New York Supreme Court
• Decided: October 15, 1822
• Status: Published

Opinion

Per Curiam.

The recovery before the Justice was for more than $25, besides costs; but it was upon an issue in law, without any issue in fact. The 17th section of “ the act to extend the jurisdiction of Justices of the Peace,” gives a right of appeal where a judgment shall be " rendered, either upon verdict or without a jury trial, above the sum of twenty-five dollars.” (Sess. 41. ch. 94.) According to the scope and provisions of the whole act, it is clear, that the right of appeal applies only to judgments on issues in fact. The statute contemplates and provides for a new trial upon the testimony of the same witnesses only; and requires, contrary to the practice of the Washington Common Pleas, that such issues in fact shall be tried by a jury, upon a proper issue framed, by pleading in the Court of Common Pleas,

By the 21st section of the same act, the remedy, by certiorari, is given in all cases, u where an appeal is not provided for” by that act.

This was a case for certiorari; (if the Justice’s judgment was erroneous ;) and it follows, that the Court of Common Pleas had no jurisdiction of the cause. The proceedings were coram non judice ; and it is of no consequence, that the present plaintiff in error made the appeal to the Common Pleas; because, consent cannot confer jurisdiction.

The judgment of the Common Pleas is a nullity; and the Justice’s judgment remains in full force. The writ of error must be quashed.

Writ of error quashed.