The opinion of the court was delivered by
Barrett, J. I.By the statute creating the city court, that court can have a jury only in civil causes. It had no power, therefore, to accord a jury, as was demanded by the respondent. To refuse such jury was not error, but was acting conformably to the statute. Acts 1872, No. 255, § 11.
*285II. That act gave jurisdiction and authority to that court to try, and render judgment in, the cause ; and the court proceeded accordingly, and rendered judgment against the respondent. To this no exception was taken. Consequently no question is before this court as to the validity of that judgment.
III. An appeal from said judgment was asked, and the court proceeded upon the matter of that application, in pursuance of the statute. Gen. Sts. ch. 94, §16. It is not claimed that the court did not act conformably to the provisions of the statute as to an appeal in such a case. The complaint is that the statute is wrong in those provisions. The court, being one of special and limited jurisdiction, could only act in matters specifically provided ior, in conformity with the statute by which jurisdiction and authority were conferred. It had no authority to act otherwise. It could not dispense with the recognizance — with the sum to be fixed — with the sureties — or with the condition prescribed by the statute. So there was no error in not allowing an appeal upon the demand and terms claimed by the respondent. The court had no authority to grant an appeal on such terms.
But however this might have been — even if the court had been wrong in not allowing an appeal as claimed — such wrong cannot be rectified on exceptions. The denying of the appeal does not touch or affect the validity of the judgment that had been rendered. If such denial was wrong, the remedy would seem to be provided in ch. 38, § 7, Gen. Sts. The remedy is not by way of getting the case sent back to the court from whose judgment the appeal was asked, but by way of getting the case into the appellate court, to be there proceeded with the same as if the appeal had been allowed. Upon exceptions, this court can only decide whether there was error in law affecting the judgment, such as would call for a reversal, to the intent that the cause should be remanded for a re-trial. This court, on these exceptions, could make no special order upon the city court to allow the appeal. Such order could only be made by judicial writ of- prerogative character. This court, as the case is new before it, cannot take cognizance of it and proceed as an appellate court, nor can it send the case to the county court to proceed with it as an appel*286late court. These obvious views demonstrate that exception is not a means of remedy that can procure the needed relief.
In view of a previous suggestion it may be proper to remark, that we do not undertake to decide that the county court, upon a proceeding under § 7, ch. 38, of the Gen. Sts., would be warranted in regarding the failure of the respondent to get an appeal, to have been caused^by such accident or mistake as to entitle that court to entertain the application and grant the relief. The mistake was not in the city court, because it acted in strict conformity with the statute. The mistake on the part of the respondent was not, that he did not know what the statute was, nor that he misapprehended its provisions, or the action of the court under it. The mistake, if any there be, was in the legislature in making such terms and conditions for an appeal in such a case. It seems a little perplexing to see how the county court could hold, that the respondent was entitled to an appeal on any other terms and conditions than those prescribed by the statute, inasmuch as this matter of appeal is not one of common-law, natural, or constitutional right. The same perplexity would seem to exist as to the supreme court in the same respect, inasmuch as the statute alone provides for an appeal at all in such cases. It would not seem to meet the point to say that the respondent was entitled to a jury trial, and he could have such trial only by having an appeal allowed him. The fact that there may be a defect in the law in the matter of such jury trial, would hardly enable a court to supply such defect, where not only it had no lawful authority to do so, but such authority was expressly denied to it by the statute under which such court has its existence and all its functions.
It would seem to be worth inquiry, whether the most practicable course would not have been, to take exception to the judgment rendered in the cause, on the ground that it was by a court that could not give a jury trial, and whose judgment would be final utiless appealed from, and that an appeal could be had only on terms that, to some extent, compelled the respondent to obtain his right to a constitutional jury trial, by giving recognizances in sums and with conditions that, in the case of a poor man, would virtually operate a denial of such trial by jury.
*287Beyond the points decided, what is above said is only by way of suggestion, for such consideration as may behove if future cases should give occasion. As the judgment was not excepted to, we have not' had occasion to decide or discuss the constitutional questions that were pressed upon our consideration by the learned counsel in the argument. The extraordinary prerogative of American courts to pass upon the validity of the acts of the law-making power in the government, is never exercised except when necessary to the decision of the case in hand.
The-exceptions are overruled.