Cullen v. Lowery

2 Del. 459

• Court: Superior Court of Delaware
• Decided: July 5, 1838
• Status: Published

Opinion

By the Court.

J. M. Clayton, Chief Justice:

The action below was for a school tax, founded on a special act of assembly giving jurisdiction to justices of the peace, for such a cause of action, as against persons who have removed from the school district. The exception is to the jurisdiction in this particular case; and the appellant has alledged as a matter of fact, that he had not removed from the district. Evidence was admitted on this point, under the impression that such practice was warranted by the case of Luff and Bailey, which was a leading case in the Supreme Court. The principles announ ced in that case embrace the following: “as a general rule, on a certiorari, the court are to decide on the record, and can hear nothing out of it; they are to inspect the record, confine the justice to cases within his jurisdiction, and to the execution of his powers in the manner prescribed by law ; and not to inquire into and re-decide the merits of the casebut this general rule must be subject to modifications and exceptions. That one class of cases, on the principle of necessity, must be an exception, where the nature of the cause of action and the pleas and defence are not set down, or made a part of the record below.

Bates, for plaintiff. Frame, for defendant

In the present case, the party excepting first tendered an issue of fact, dehors the record, as to his removal from the district; and on the testimony being taken, this is found to be against him. But his counsel now takes the ground that the record must, in itself, show the jurisdiction; and that no evidence can be received by the court to sustain it. We have, therefore, to decide this question, and we do, in accordance with the case cited, determine that this evidence was properly taken on the allegation of the exceptant against the jurisdiction. It falls within the class where the nature of the cause of action is not fully set down; and where neither party ought to be precluded from showing how the fact is, especially in reference to jurisdiction. Having properly admitted evidence on this point, it has sustained the jurisdiction.

If the case stood on the record alone, we should hesitate to reverse for want of jurisdiction. The record shows that the suit was for a school tax. There is one case, and but one, in which the justice has such jurisdiction, and perhaps we ought to presume that it was such a case, rather than to presume the contrary; but evidence on this point having been taken in accordance with the practice of the late Supreme Court, we decide upon that evidence and not upon any presumption.

In all cases, however, where it is sought to introduce proof, out of the record on certiorari, the foundation must be laid by affidavit of the truth of the facts stated, and motion to the court. The taking of such evidence is by no means of course, and the practice must be strictly guarded. Judgment affirmed.