1st, Is a transcript of the docket entries, in a case tried before a justice of the peace, duly certified for the purpose of entering an appeal in the Superior Court, the certificate to such transcript being under the hand of the justice, without a *Page 476 seal? The act of assembly requires the transcript to he furnished by the justice, under hand and seal, and when so certified, makes the same evidence, and duly certified; therefore, without the seal, I consider it not a duly certified transcript for the purpose of entering an appeal.
2d. If it be required by the act, that such transcript should be certified under the seal of the justice, can advantage be taken by the respondent of the want of such seal, after appearance by him to. the appeal, rule on appellant to declare, pleas filed, jury empannelled and sworn, and testimony closed?
The act of assembly, (Dig. Del. Laws, p. 343, sec. 24,) provides, "It shall be the duty of the party appealing, or his, her or their executors or administrators, to cause the appeal to be entered in the court of law in the county wherein the judgment appealed from shall have been given, on or before the first day of the term of such court next after the date of the appeal," and then prescribe the manner of entering the appeal thus, "and for this purpose, to deliver a transcript duly certified of all the docket entries in the case wherein the appeal taken shall have been taken, to the clerk or prothonotary of the court in which the appellant shall elect to enter the appeal." The transcript being duly certified, and the appellant having done what the act makes it his duty to perform, the appeal is then entered.
If the appellant delivers to the prothonotary a paper purporting to be a transcript, and the same not being under the hand and seal of the justice, is filed by the prothonotary, the appeal is not entered, and the case stands precisely as it would if nothing had been done; and the case of appeal not being before the appellate court, necessarily remains a case before the justice, with an appeal taken, but not legally prosecuted. Therefore, the irregularity having occurred by the act of the prothonotary in filing a paper not a transcript, the court adopted their 41st rule, prohibiting the prothonotary from so acting in any future case, and requiring the transcript to be under the hand and seal of the justice. (2 Harr. Rep. 160.)
The 25th section of the act of assembly, gives the respondent or appellee his remedy, if the party appealing shall not cause the appeal to be entered in the Supreme Court or Court of Common Pleas, as hereinbefore prescribed, viz., "the appeal shall be abated." Now, if we ascertain where it abates, it decides the question before what tribunal it exists? It is requisite that the evidence of the non-entry, or irregular entry, must be exhibited to the tribunal in which the appeal by law is abated, otherwise, it cannot act upon the case; therefore, *Page 477 the act for this purpose, provides in the words immediately after the word abated: "and the certificate of the clerk, and the certificate of the prothonotary, under the hand of the officer, and seal of the court, showing that the appeal has not beenregularly entered in the court, being made after the first term, and produced to the justice, he shall file such certificate, and strike off the appeal." This express legal enactment upon the subject, embraces the case of an irregular entry, as well as that of no entry. Hence, in cases of appeals taken and not regularly entered by a duly certified transcript, delivered to the clerk or prothonotary, as in the act prescribed, it is apparent the case and appeal thereon granted by the justice, remain before him, and are not transferred to the appellate court. The transcript duly certified and delivered to the prothonotary, is the key that unlocks the door of the appellate court, and gives the case legal admission, or legal entry, so as to be entitled to attention and judicial action. Hence, the act provides, after authorizing the justice as I have above stated, to strike off the appeal in obedience to the legal command that "the appealshall be abated," provides; "also, if the party appealing,after the appeal shall he duly entered, shall neglect to prosecute the same, c, there shall be entered an order of court, that the appeal be dismissed, and the record remitted to the justice from the whom the appeal came, and a judgment that the appellate recover costs against the appellant;" which costs the justice is to add to the original costs before him, c.
From the preceding legal provisions upon this subject of appeal, the appellate court cannot exercise a power which dispenses with the express legislative enactment upon the subject; nor can the prothonotary, by his act, annul the rule of the court. Then the case only remains to be considered upon the latter branch of the question, which I will now advert to. It relates to the. effect of the proceedings in the Superior Court, and whether they deprive the appellate of his right to take advantage of the irregular entry of the appeal. If I am correct in considering the appeal not before the Superior Court, then the jurisdiction being appellate, and the subject matter of appeal and record of the inferior tribunal being not transferred, it appears to me, the party entitled to his remedy before the justice, and having none before the Superior Court, cannot be prejudiced by the proceedings, when by the act of assembly, he is required to wait until after the term of the court expires, before he can apply to the justice to have the appeal abated, and his relief is by the act given in the inferior, and not in the Superior Court; therefore, I conclude the doctrine of waiver cannot be considered applicable to the case. *Page 478
3d. If a seal be essential as aforesaid, may not the court at such stage of the proceedings, direct the justice's certificate to the transcript, to he amended by his affixing his seal to it? The constitution, art. 6, sec. 16, provides, "in civil causes when pending, the Superior Court shall have the power of directing amendments." In this case, as I do not consider the appeal pending in the Superior Court, it cannot be that the court can with propriety direct the justice to affix his seal. Besides, the act of assembly granting the appeal, having embraced the subject, and prescribed the specific remedy to the party aggrieved, appears to me necessarily to exclude the justice from being liable to any such order from the Superior Court.
Certificate ordered, that judgment be rendered below in favor of the appellant.