JUNE term, 1847. Questions reserved by the Superior Court of Kent county.
The questions arose in the Superior Court on an appeal from the judgment of a justice of the peace, in which appeal the parties had pleaded to issue, and the jury were sworn; when the counsel for the defendant moved to dismiss the appeal for want of a sufficient certificate to the transcript.
The questions reserved were: 1st. Is a transcript "duly certified" for the purpose of entering an appeal in the Superior Court, by thehand of the justice without a seal? 2d. If a seal be essential, can advantage be taken by the defendant of the want of such seal, after appearance by him to the appeal, rule on the appellant to declare, pleas filed, jury empannelled and sworn, and plaintiff's testimony closed? 3d. May not the court direct the justice's certificate to the transcript to be amended, by his affixing his seal to it.
[All the judges were present at the hearing, to wit, Johns, jr., Chancellor; Booth, Chief Justice; Harrington, Milligan, and Hazzard, Justices.]
Layton, for defendant. — The case was not regularly in the court below, which had no jurisdiction to try it. The act, of assembly requires the appellant to file a "duly certified" transcript, and gives
jurisdiction to the appellate court thereupon; and sec. 40, requires this transcript to be under hand and seal. (Dig. 345,secs. 24, 25, 40; 2 Harr. Rep. 158, 100.) 3d. The Superior Court has no power to suffer this matter to be amended. It was not a cause "pending" in that court; nor was there any thing to amend by. 3d. The pleading to issue was no waiver of any objection to the jurisdiction. It is not in the power of a party, by waiving any right, or by a direct consent, to give a court jurisdiction.
Whenever the court discovers its want of jurisdiction it will dismiss the cause. (1 Tyler's Rep. 218; 2 Crunch 126; 4 Ibid
46; 4 Cowen's Rep. 80, 540; 5 Ibid 33; 9 Ibid 227, 229.)
In courts of limited jurisdiction, though not inferior, the facts which are requisite to the jurisdiction must appear on the face of the record. (2 Bac. Ab. 630; 9 Mod. Rep. 395; 3 Dall.Rep. 382; 4 Ibid 7, 8.)
Bates and Bates, jr. — At the stage of the proceedings stated in the second question reserved, it is not competent for the respondent to object to this transcript.
The jurisdiction of the Superior Court over the subject matter of causes appealed into that court from justices courts, is perfect whenever the prerequisites required by the act are complied with, so far as the party appealing is required to do them. These prerequisites are: 1st. That the sum in controversy shall exceed $5 33. 3d. That the appeal shall be taken in fifteen days. 3d. That the party appealing shall enter into security. All other things are merely formal to bring the record up; to bring the parties in; to compel them to plead, and bring on the trial.
Nothing that is essential to the Jurisdiction can be dispensed with by the court, or can be waived by the parties; but any thing that relates to the mode of proceeding merely, may be supplied or waived. The argument of the other side is founded on the principle that consent cannot give jurisdiction. In one sense this is true; in another it is not. It is very common to lose an objection, which might properly be taken on a plea in abatement, by pleading over. The true meaning of the maxim is, that no consent can give a court jurisdiction to try a cause, the subject matter of which the court is not invested with jurisdiction over; but where the court has jurisdiction of the cause of action, defects in the initiatory process may be cured, though such process may, in one sense, be essential to the court's jurisdiction. Thus, the court has no jurisdiction to try the cause of a party defendant, without notice to him; and yet, if he appear and
plead he waives this objection to the jurisdiction. (1 Bouv. LawDict. 732, 733; 4 Mass. Rep. 590, 591; 3 Johns. Rep.
105, 113.)
The doctrine of waiver is, that though a party may have some advantage in the course of the proceeding, he shall be bound to use it at the right time, or he shall be considered as having waived it. (1 EastRep. 81.)
The transcript is not in any sense essential to thejurisdiction, of the Superior Court. The act says, that appeals shall be allowed of right. (Secs. 22, 23.) Whenever the party has appealed and given security, the jurisdiction of the court is complete over the case; yet something must be done to bring the parties, and the case, into court; and that is the filing a transcript. Just as in other cases the issuing process is necessary to bring the case into court, though it has jurisdiction independently of this. The Superior Court has jurisdiction of trespasses from the time they are committed, yet they have no power to proceed until this jurisdiction is moved by issuing process, and summoning the defendant. Any objection to the jurisdiction of the court over the matter is fatal; but an objection to the exercise of the jurisdiction from some defect in moving it to action, must be made at the right time, or it is waived.
The object of the appeal is to provide a jury trial in the cases requiring it. It is the right of the party on complying with the conditions required of him. Is it likely or reasonable that this right should be left to the pleasure of the magistrate? that he may defeat it by not certifying the transcript properly, or not at all.
On the great principle alone of the right to the appeal, the Pennsylvania courts entertain appeals not duly certified by the magistrate. (1 Ashm. Rep. 380; 3 Serg. Rawle 364; 6Ibid 549; 2 Alab. Rep. 40.)
The act provides that on filing and entering the transcript in a cause, the court shall have jurisdiction thereof. It does not say shall thereupon, or from thenceforth, have jurisdiction. It simply means that the court shall have cognizance; and (in this connection,) that the particular court in which it was filed, (the Supreme Court or Court of Common Pleas having concurrent jurisdiction,) should have the jurisdiction to try this particular cause. Just as in actions of trespass, though both of these courts had jurisdiction of a trespass from the time it was committed, the court in which the suit was brought had the jurisdiction (or cognizance) of the particular case of trespass as between parties to it.
As to the cases cited, the Vermont case was not within the jurisdiction
of the court appealed to. One answer applies to all the New York cases. The law of that State requires a bond to be given on the appeal with surety, and for default of such surety declares that "the appeal shall have no effect whatever." The cases are all cases of this kind. They by no means come up to the position that a defect in certifying the record, after a bond was regularly given, would deprive the court of jurisdiction. (2 Rev. Stat. N. York 259.)
If this objection had been taken at the first term, the court would have suffered the justice to put his seal to the transcript. But instead of making the objection then, the defendant pleaded to issue, continued the appellant with his witnesses in court for two terms, and raised the objection only at the close of a trial before the jury. This is a waiver of the objection to any defect in' the transcript of the justice.
Layton, in reply. — 1st.
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JUNE term, 1847. Questions reserved by the Superior Court of Kent county.
The questions arose in the Superior Court on an appeal from the judgment of a justice of the peace, in which appeal the parties had pleaded to issue, and the jury were sworn; when the counsel for the defendant moved to dismiss the appeal for want of a sufficient certificate to the transcript.
The questions reserved were: 1st. Is a transcript "duly certified" for the purpose of entering an appeal in the Superior Court, by thehand of the justice without a seal? 2d. If a seal be essential, can advantage be taken by the defendant of the want of such seal, after appearance by him to the appeal, rule on the appellant to declare, pleas filed, jury empannelled and sworn, and plaintiff's testimony closed? 3d. May not the court direct the justice's certificate to the transcript to be amended, by his affixing his seal to it.
[All the judges were present at the hearing, to wit, Johns, jr., Chancellor; Booth, Chief Justice; Harrington, Milligan, and Hazzard, Justices.]
Layton, for defendant. — The case was not regularly in the court below, which had no jurisdiction to try it. The act, of assembly requires the appellant to file a "duly certified" transcript, and gives
jurisdiction to the appellate court thereupon; and sec. 40, requires this transcript to be under hand and seal. (Dig. 345,secs. 24, 25, 40; 2 Harr. Rep. 158, 100.) 3d. The Superior Court has no power to suffer this matter to be amended. It was not a cause "pending" in that court; nor was there any thing to amend by. 3d. The pleading to issue was no waiver of any objection to the jurisdiction. It is not in the power of a party, by waiving any right, or by a direct consent, to give a court jurisdiction.
Whenever the court discovers its want of jurisdiction it will dismiss the cause. (1 Tyler's Rep. 218; 2 Crunch 126; 4 Ibid
46; 4 Cowen's Rep. 80, 540; 5 Ibid 33; 9 Ibid 227, 229.)
In courts of limited jurisdiction, though not inferior, the facts which are requisite to the jurisdiction must appear on the face of the record. (2 Bac. Ab. 630; 9 Mod. Rep. 395; 3 Dall.Rep. 382; 4 Ibid 7, 8.)
Bates and Bates, jr. — At the stage of the proceedings stated in the second question reserved, it is not competent for the respondent to object to this transcript.
The jurisdiction of the Superior Court over the subject matter of causes appealed into that court from justices courts, is perfect whenever the prerequisites required by the act are complied with, so far as the party appealing is required to do them. These prerequisites are: 1st. That the sum in controversy shall exceed $5 33. 3d. That the appeal shall be taken in fifteen days. 3d. That the party appealing shall enter into security. All other things are merely formal to bring the record up; to bring the parties in; to compel them to plead, and bring on the trial.
Nothing that is essential to the Jurisdiction can be dispensed with by the court, or can be waived by the parties; but any thing that relates to the mode of proceeding merely, may be supplied or waived. The argument of the other side is founded on the principle that consent cannot give jurisdiction. In one sense this is true; in another it is not. It is very common to lose an objection, which might properly be taken on a plea in abatement, by pleading over. The true meaning of the maxim is, that no consent can give a court jurisdiction to try a cause, the subject matter of which the court is not invested with jurisdiction over; but where the court has jurisdiction of the cause of action, defects in the initiatory process may be cured, though such process may, in one sense, be essential to the court's jurisdiction. Thus, the court has no jurisdiction to try the cause of a party defendant, without notice to him; and yet, if he appear and
plead he waives this objection to the jurisdiction. (1 Bouv. LawDict. 732, 733; 4 Mass. Rep. 590, 591; 3 Johns. Rep.
105, 113.)
The doctrine of waiver is, that though a party may have some advantage in the course of the proceeding, he shall be bound to use it at the right time, or he shall be considered as having waived it. (1 EastRep. 81.)
The transcript is not in any sense essential to thejurisdiction, of the Superior Court. The act says, that appeals shall be allowed of right. (Secs. 22, 23.) Whenever the party has appealed and given security, the jurisdiction of the court is complete over the case; yet something must be done to bring the parties, and the case, into court; and that is the filing a transcript. Just as in other cases the issuing process is necessary to bring the case into court, though it has jurisdiction independently of this. The Superior Court has jurisdiction of trespasses from the time they are committed, yet they have no power to proceed until this jurisdiction is moved by issuing process, and summoning the defendant. Any objection to the jurisdiction of the court over the matter is fatal; but an objection to the exercise of the jurisdiction from some defect in moving it to action, must be made at the right time, or it is waived.
The object of the appeal is to provide a jury trial in the cases requiring it. It is the right of the party on complying with the conditions required of him. Is it likely or reasonable that this right should be left to the pleasure of the magistrate? that he may defeat it by not certifying the transcript properly, or not at all.
On the great principle alone of the right to the appeal, the Pennsylvania courts entertain appeals not duly certified by the magistrate. (1 Ashm. Rep. 380; 3 Serg. Rawle 364; 6Ibid 549; 2 Alab. Rep. 40.)
The act provides that on filing and entering the transcript in a cause, the court shall have jurisdiction thereof. It does not say shall thereupon, or from thenceforth, have jurisdiction. It simply means that the court shall have cognizance; and (in this connection,) that the particular court in which it was filed, (the Supreme Court or Court of Common Pleas having concurrent jurisdiction,) should have the jurisdiction to try this particular cause. Just as in actions of trespass, though both of these courts had jurisdiction of a trespass from the time it was committed, the court in which the suit was brought had the jurisdiction (or cognizance) of the particular case of trespass as between parties to it.
As to the cases cited, the Vermont case was not within the jurisdiction
of the court appealed to. One answer applies to all the New York cases. The law of that State requires a bond to be given on the appeal with surety, and for default of such surety declares that "the appeal shall have no effect whatever." The cases are all cases of this kind. They by no means come up to the position that a defect in certifying the record, after a bond was regularly given, would deprive the court of jurisdiction. (2 Rev. Stat. N. York 259.)
If this objection had been taken at the first term, the court would have suffered the justice to put his seal to the transcript. But instead of making the objection then, the defendant pleaded to issue, continued the appellant with his witnesses in court for two terms, and raised the objection only at the close of a trial before the jury. This is a waiver of the objection to any defect in' the transcript of the justice.
Layton, in reply. — 1st. No amendments have ever been allowed after the jury has been sworn. 2d. It is the filing a transcript
which gives the Superior Court jurisdiction of appeals from justices of the peace. The mode of taking the appeal, and the filing the transcript is the act of the party; and if the certificate is defective, it is the fault of the party, as well as of the magistrate. The magistrate is also liable to him for any negligence on his part. If the appeal be not properly entered, the law says the "appealshall be abated." That was my motion in the Superior Court.
The cases cited on the other side are cases of waiver of a personal privilege, or favor granted for the case of the party.
By the Court:
1st. In no case is a transcript from the docket of a justice of the peace, certified under such a seal as is recognized by the common law. An ink-scroll, or flourish of a pen, has been allowed by common usage, as a substitute. The scroll does not, in point of fact, although called a seal, give any authenticity whatever to the transcript. The authentication appears only by the signature of the justice. As his docket entries are treated as records, and copies are, by the act of assembly, to be received in evidence in any court, when certified under the hand and seal of the justice, it was a useless provision to require his seal, unless it was intended as a further authentication than was afforded by the fact of his merely signing his name. A seal according to the common law, has some device, emblem, or inscription, which distinguishes it from other seals; and when required to be affixed to a writing, the impression must be made on wax or wafers. Although the common law has been
departed from in this State, in the case of private instruments which require a seal, by allowing the substitute of a scroll, merely because a party's signature is better known and more easily proved than his seal, the common law ought not to have been departed from in any case, where the authentication of a record of a court or magistrate was required to be under seal. As a scroll or flourish, a vain ceremony at best, is in all cases of records of justices of the peace, substituted for a seal, and in nowise serves to authenticate the transcript, it would be in accordance with common sense to hold that the transcript was sufficiently authenticated by the signature of the justice, without the scroll. But as the Superior Court acting upon the principle of "communis error facit jus," held in the case of Greenvs. Kinney, 2 Harr. 160, that a seal, by which was meant a scroll, was essential to the certificate of a transcript; we follow that decision upon the principle of "stare decisis;" and therefore hold, that the transcript to be duly certified for the purpose of entering an appeal, must be under the hand and seal of the justice.
2d. The respondent's counsel assumes in his argument, that jurisdiction in cases of appeal from justices of the peace, is given to the Superior Court, only by the appellant's delivering to the prothonotary, a transcript of the docket entries certified under the hand and seal of the justice, and the prothonotary's filing the transcript, and setting down the appeal on the docket, as directed by the 24th section of the act for the recovery of small debts. (Dig. 343.) It is then argued, that if the transcript is not properly certified, the Superior Court has no jurisdiction over the case; and therefore, although the transcript is perfect in all respects, except that it is without a scroll, or flourish of a pen; all the proceedings before the Superior Court are a nullity: that as consent cannot confer jurisdiction, the defect cannot be cured, and the appeal must therefore be dismissed. If this reasoning be correct, then it follows, that if in any other respect, besides the omission of the justice to make a flourish with his pen, the directions of section 24, Dig. 343, 344, are not strictly pursued, as for instance, if the prothonotary omits to file the transcript, or to indorse the time of receiving it, or to enter the appeal on his docket, or the time of filing the transcript, or does not immediately issue a summons to the appellate, to appear and answer to the appeal, or omits it altogether, the appeal must be dismissed; and the right to have a rehearing, expressly secured by the statute to a party who offers before the justice sufficient security to prosecute his appeal with effect, is forever defeated.
The whole of this argument is founded in misconception; and hence the wrong application to this case, of a sound principle of law. Byjurisdiction is meant, that power which is conferred by law, upon a court, judge, or magistrate, to hear and determine the subject matter in controversy between litigating parties. Jurisdiction is conferred by statute on the Superior Court to hear and determine the subject matter of appeals from justices of the peace; and the transcript of the docket entries of the justice is required to be filed, not to confer jurisdiction, but to enable the court to exercise the jurisdiction conferred by law, that is, to hear and determine the subject matter in controversy. The transcript is for the purpose of giving the court cognizance of the appeal; and in this respect, is in the nature of process requiring a party to appear and answer to a suit where the court possesses original jurisdiction over the subject matter. If the court never had jurisdiction, no consent of parties can give it. Therefore, if an appeal be taken where the statute confers on the court no appellate jurisdiction, the appeal will be dismissed in any stage of the cause. But any irregularity or defect in the process, or other form of proceeding by which cognizance of a case is given to a court of which it possesses original or appellate jurisdiction, may be waived by the party for whose benefit suet process or form of proceeding is required. If he does not take advantage of the irregularity or defect at the earliest period, he is considered as having waived it. In the present case, if the respondent chose to avail himself of the want of a scroll to the justice's certificate of the transcript, he was bound to make the objection at the term to which he was summoned to appear, or before he did any act, from which a waiver could be implied. Neglecting to do so; and having pleaded to the declaration and gone to trial, the defect has been waived. It is an admission by him, that the transcript is in proper form; and operates as an estoppel against his alledging otherwise.
The opinion of this court on the first and second questions, renders the consideration of the third unnecessary. It is therefore ordered, that the opinion of this court be certified to the Superior Court in and for Kent county, and that the said court cause judgment to be entered for the appellant for the amount of the verdict, and all costs.