[Paper 1]
[indorsement]
Sup. Court Ist Circuit.
Raymond vs. Warner Junr et al.
Mem0 of opinion—
Sup. Court Ist Circuit.
Stephen Raymond vs. Edward Warner Junr George Wales & Matthew H, Webster
In this case a motion is made by the Counsel for the Plff for a mandamus to be directed to the Judges of the Circuit Court for the County of Wayne commanding them to dismiss a suit entered in that court by the above named Defts. on appeal from the Judg* of a justice of the peace.
The affidavit of the Plff upon which the motion is made, sets forth that the Plff sued Warner, as constable, and the other two Defts his sureties in an action of debt, and declared against them, & alleged that the Plff had delivered to the said Warner, as such constable, a certain execution issued on a judg* rendered by J. W. Strong Esq. a Justice, in favor of the Plff and against Abraham Starks — And that the said constable had failed to return the execution within the life of the same.—
That on the trial of that suit judg* was rendered in favor of the Plff and against the Defts for $97.50. That the Defts appealed from said judg* to the said Circuit Court, and caused the appeal to be entered in the Circuit Court at the last May term — That his attorney at the same term moved the Circuit [Court] to dismiss the appeal, and that his motion was denied, and that the appeal in is now pending in that Court. That a supersedeas to the Exn on the judg* rendered by the Justice, has been issued by the Presiding Judge at the Circuit Court.
In support of the Mo. it is contended that the Circuit Court has no jurisdiction of the cause, on the ground that,
The 25 Section of the Stat; relating to Justice’s'Courts, gives an action of debt against a constable and his sureties for the neglect of the constable in serving an execution, and authorizes the justice who shall, try the case to give judg‘ for the amount of the ex“ and 25 per cent damages thereon, with interest and costs; and expressly declares that, in such case, “neither the constable not his sureties shall be entitled to any stay of ex11 or an appeal, but ex“ shall issue forthwith.”—
In opposition to the Motion it is urged, that by the 33d Sect, it is expressly declared that no order, or proceedings whatsoever had or made by any justice of the peace, under the authority of any law of this State shall be removed to the Supreme Court by certiorari or otherwise — , but may be reviewed and corrected only by appeal to the Circuit Court according to the provisions of that Chapter — And that by the 34th Section, being a part of that Chapter it is provided that either may have an appeal to the Circuit Court, in all matters.and proceedings before a Justice, upon which heretofore, according to the laws and usages of this State, a writ of certiorari might have been allowed and taken, to remove the same to the Supreme Court, and that upon inspection and ex11 of such proceedings the Circuit Court shall give such judg4, or make such order, as law and justice, and the rights of the parties shall require.—
There is certainly a mainfest inconsistency in these provisions — one prohibiting an appeal in a given case from the judg1 of a justice — and the other giving a party in all cases a right to appeal when by the laws and usages of this State, prior to adoption of the Revised Stat. the case might have
Up to the time o£ the taking effect of the Rev. Stat. a Judg* against a constable and his sureties for the neglect mentioned, could be removed to the Sup. Court by certiorari only — the appeal to the Circuit [Court] was then also expressly forbidden. A'nd by the laws in force at the time of the adoption of the Rev. Stat. either party to a Judg* rendered by a Justice in all cases make [might] take his certiorari to the Sup. Court.
By the Rev. Stat. the right to remove to the Sup. Court was entirely abolished in the most- general terms — not confining it to judgts rendered in the ordinary jurisdiction in civil cases at law, but including all orders or proceedings of a Justice whatever under the authority of the laws of the State—
And in the same Chapter it is also explicitly declared that in all cases when by the former laws and usages, a certiorari might have been taken to the Sup. Court, either party may appeal to the Circuit Court, and have the record inspected and decide by that Court, as upon certiorari—
The manifest intent of the legislature in this provision was to substitute an appeal to the Circuit Court in all cases where by the former laws a certiorari might be taken to the Sup. Court.
It was evidently an oversight, after making this general provision, that the prohibition of an appeal in the 25 Sect, was stricken not out.
This prohibition was in all the former Stat., but then the Defts could review the proceedings on certiorari—
It can hardly be supposed that the legislature intended to take away every mode of review or redress in cases of such
With these views of the subject, the provisions of the Stat. conflicting in terms directly, I think the Defts are entitled to the same 'remedy, to .which they would have been entitled to in the Sup. Court on certiorari previous to the adoption of the Rev. Stat. only modifying it however, as to the form, by taking this special appeal in the nature of a certiorari to the Circuit Court, according .to the provisions of the Rev. Stat.
Mo. denied—
[Paper 2]
[indorsement]
Sup Court: Is* Cir*
Stephen Raymond vs Edwd Warner Et al
Opinion of C. W. W. Van Dyke for pff.
Bates, Walker & Douglass for defendant.