Fraser v. Livingston, 1 Fla. 392 (Fla. 1847)
Supreme Court of Florida
January, 1847
Fraser v. Livingston, 1 Fla. 392 (Fla. 1847).
PHILIP FRASER vs. FELIX LIVINGSTON, SOLICITOR, &c.
Appeal from an order granted at the Fall Term, 1846, of Duval Circuit Court, Judge Baltzell presiding.
It appears from the record, that on 13th November, 1846, Felix Livingston, the Solicitor of the Circuit, filed a petition before Judge Douglas, the Judge of the Circuit, the object of which was to have an order, made on the 15th September previous, allowing Fraser to withdraw from the files of the Court a certain written paper which had been filed with an indictment, and of which he claimed to be the owner, annulled and for a rule on the said Fraser to show cause why he should not be required to return the said written paper to the files of the Court. The petition recited at length the facts and circumstances on which the application was based and was supported by several affidavits.
Upon the filing of the petition, the Judge of the Circuit granted an order, "that the said Philip Fraser shew cause before the Circuit Court for the Eastern Circuit of the State aforesaid, on the first day of the next Term thereof, to be holden at the Court House in Jack-sonville in Duval county, on the 4th Monday of the present month of November, or so soon thereafter as counsel can be heard, why the order so made on 15th day of September last, giving to the said Philip Fraser leave to withdraw the said written paper from the files of said Court shall not be revoked and rescinded, and why he, the said Philip Fraser, ought not to return the said written paper to the files of the same Court; and it is further ordered that notice of this rule be given to said Philip Fraser, &c.
At the Fall Term of the Circuit Court, to wit, on the 25th November, 1846, Philip Fraser shewed cause, under the said rule, by filing his written answer to the said petition, which set forth fully his rights in the premises.
After having heard the petition and evidence on both sides, and after argument on behalf of petition and respondent, the Court made the rule granted on 13th November absolute, and ordered as follows: "It is therefore considered by the Court, that the order entered on the 15th day of September, A. D., 1846, granting to the party the possession of the original paper, the subject of this rule, be and the same is hereby annuled. And it is further ordered, that the said paper be returned by the said Philip Fraser to the files of this Court by the first day of January next."
From this decision and order of the Court, the said Fraser thereupon in open Court prayed an appeal, which was granted. On the 1st December, 1846, he filed his appeal bond, which was approved of, and is in the usual form.
On the 4th January, 1847, appellee, by Randal & Hagner, his Attorneys, moved the Court to dismiss this case from the docket of this Court, on the following grounds:
1. Because no appeal was obtained in Court from the order of 25th November, 1846, made by his Honor Judge Thomas Baltzell, and no proper appeal bond filed.
2. Because no appeal lies from said order, the same not being a final judgment, sentence or decree, within the purview of the 1st sec. of Act regulating the mode of suing out writs of error and prosecuting appeals, &c. Duval, p. 108.
3. Because the granting of said order was an exercise of the discretion of the Court below, in defence of its own proper right, and in the assertion of its own self-respect, of which the Court below is alone the rightful judge, and over which discretion, when so exercised, this Court has no jurisdiction.
4. Because the said order of 25th Nov., 1846, was a revocation of a prior order of 15th Sept., sub-granted by the same Court. That said prior order of 15th Sept., accorded to said Philip Fraser a liberty and privilege upon an ex parte showing then made by him, which liberty and privilege the said Court was under no obligation to grant, nor said petition any legal right to claim or require; and as the granting of the order was a matter of favor and not of right, the retracting the privilege and requiring the delivery of the paper in question, and replacing the same upon the files of the Court, is within the legitimate exercise of the peculiar privileges of the Court below, and not subject to revisal or review in this Court.
Headnotes
On the ex parte application of A., who claimed to be the owner of a written paper filed with an indictment, an order was granted allowing him to withdraw the paper, which he accordingly did; afterwards, upon a petition filed by the Solicitor of the Circuit before the Judge of the Circuit, another order was made directing A. to show cause why the former order granting him permission to withdraw the paper, should not be rescinded, and why he should not return it to the files of the Court; and at the first Term of the Court thereafter, A. having shown cause by filing an answer to the petition, the order nisi was made absolute, and A. directed to return the paper in accordance with the prayer of the petition; held, that the petition and proceedings under it are not properly matters of record, and that no appeal will lie in such case either at common law or in virtue of the several acts of the Legislature of Florida, giving the right, and regulating the mode, of suing out writs of error and prosecuting appeals.
Such case properly belongs to that numerous class of rules and orders of a summary character which a court of record is empowered, in its discretion, to make in regard to causes therein pending or determined, or otherwise relating to the record, proceedings and files of the court, in the exercise of its inherent powers of general superintendence and control over all matters affecting its dignity and policy, or its due and rightful administration of the laws; and such matters are not subject to be reviewed by writ of error or appeal in the halls of superior tribunals.
Attorneys
Randal & Hagner for appellee, in favor of the motion to dismiss. They moved to dismiss this appeal, upon the grounds following, viz:
1. Because no appeal was obtained in Court from the order of 25th Nov., 1846, made by his Honor Judge Baltzell, and no proper appeal bond filed.
An appeal cannot be sustained, unless it appears from the record that it was granted. Clark vs. Lowry, 1 Overton, 313. Moody vs. Moody, 1 Fairfield, 247.
The appeal bond in this case is conditioned to pay "the debt, damage or condemnation money, and costs, in case the judgment, sentence or decree, shall be confirmed." There was no debt--there was no condemnation money to be paid--no judgment, sentence or decree; and the condition is entirely nugatory. The appellant was required to deliver up a paper formerly withdrawn from the Court, and the bond given is no manner of security that he will do it upon confirmation of that order of the Court.
2. Because no appeal lies from said order, the same not being a final judgment, sentence or decree, within the purview of the 1st sec. of the Act regulating the mode of suing out writs of errors and prosecuting appeals. Duval's Comp., 108.
The whole statute relates to controversies between parties to a litigation according to the course of the common law. A judgment is the remedy prescribed by law for redress of injuries, and the suit or action is the means of administering it. Tomlin's Law Dict., Title Judgment.
It is the conclusion of a suit. A suit is the lawful demand of one's right. 6 Wheaton's Reports, 264.
An action is defined thus, "actio nihil aliud est, quam jus persequendi in judico quod sibi debetur." Justinian, Lib. 4, Tit. 6, De Actionibus.
Thus, then, it is clear that the statute has in view the prosecution by parties in interest of their rights by action--and that according to the course of the common law. But an appeal is granted. Now, an appeal is a civil law process, and removes a cause entirely, subjecting the law and fact to a review and retrial; while the writ of error, also embraced in the same statute, is a common law process, and re-moves, for re-examination nothing but the naw. U. V. vs. Goodwin, 7 Cranch, 108.
The appeal being unknown at the common law, and only given by statute, is not to be extended beyond the terms of the statute. 7 Pickering Rep., 320.
Such an appeal lies only where the cause has been tried, and a sentence or judgment rendered; and a non-suit, for example, for noncompliance with an interlocutory order, is not a sentence or judgment, and not within the statute. Hoyt et al. vs. Brooks, 10 Connec., 188.
The appellee's counsel then reviewed the outline of jurisdiction of the Courts, (citing 2 Chitty's Gen. Prac., 312-3. 3 Chitty's Gen. Prac., 33), and they showed that summary applications appertain to the peculiar jurisdiction of the Court exercising it, with which appellate jurisdiction does not interfere. Same citations were made; also, late jurisdiction does not interfere. Same citations were made; also 1 Chitty's Archbold's Pr., 346. 2 do., 1194.
Now the original statute of 1832, before referred to, gives no ap-1833, (Duval, p. 111), gave the appellate Court jurisdiction in certain applications of that suit.--Rules over their own officers, &c.--expressio unius alterius est exclusio."
Again, by the common law, rules of court are not records, only remembrances, not entered on the rolls of the Court. 1 Tidd's Prac., 490. 1 Wilson's Rep., 41. 2 Barn. & Ald., 61.
These rules, not being records, are no part of the cause, even where they occur in the progress of a cause; they are strictly and properly matters of practice, regulated by the power of amendment which the courts of law possess, either by the common law or the statutes of amendment. In the House of Lords. Melvish vs. Richardson, 9 Bingham, 125. Scales vs. Cheese, 12 Mees. & Welsby, 685.
But it may be contended that being set up here in the record, this rule is to be considered as part of it. Not so. The same case of 9 Bingham, 125, denies such effect. "For if the grounds of the amendment are not in themselves removable by the writ of error; and if the parties to the suit have not ex debito justitiae, the right to put the rules and orders for the amendments upon record, then the Superior Court would have, or would not have, authority to enquire into the propriety of the amendments according as the Inferior Court did or did not return in the particular instance the order by which the amendment is made."
Now, the order complained of is interlocutory only. That it is not final, in any sense, is too clear to require argument.
3. Because the granting of said order was an exercise of the discretion of the Court below, in the defence of its own proper right, and in the assertion of its own self-respect, of which the Court below is alone the rightful judge, and over which discretion, when so exercised, this Court has no jurisdiction. 3 Chitty's Gen. Prac., 32. 1 Hawks' No. Ca. Rep., 93-4.
4. Because the order appealed from was a revocation of a prior order granted by the same Court; that said prior order accorded to the said Philip Fraser a liberty and privilege upon an ex parte showing then made by him,--which liberty and privilege, the said Court was under no obligation to grant, nor had said petitioner any legal right to claim or require. And as the granting of the order was a matter of favor and not of right, the retracting the privilege and requiring the re-delivery of the paper in question, and the replacing the same upon the files of the Court, is within the legitimate exercise of the peculiar privilege of the Court below, and not subject to revisal or review in this Court. 1 Devereux' Rep., 74-5. 2 Harris & Gill, 79. 10 Conn., 188. 1 Murphy's Law & Eq. 7 Vermant, 476--534.
Philip Fraser, for Appellant.
This appeal is well taken. It is from a final order in an original proceeding in the Court below. This is not an interlocutory order in any cause pending in the Court below, resting solely in the discretion of the Court. The Act of the Legislative Counsel, approved, provides for appeals in all cases from any final judgment, sentence or decree, pronounced in the Court below. It is under this Act that the appeal is taken. It is evident that the Legislature intended by this Act something further than to provide for appeals from judgments in actions at law, and decrees in suits in equity. Else, why use the word "sentence?"
Again, in the Act of the subsequent year, upon the same subject, the Legislature gives an interpretation of its meaning in the former Act by the words, "final judgment, order or decree;" clearly showing that it was the intention of the Legislature to provide for appeals in all cases where a final judgment, order or decree, had been made in the Court below.
2d. The Court below had no power to make the order from which this appeal is taken. It was not a matter resting in their discretion. See Rex vs. Cator, 2 East. Rep., 361.
The libel had been published, and, consequently, ceased to be the property of the person publishing it. It was proven in the Court below, that the author of the libel posted copies of it in public places. It was also proved to be in his hand-writing; establishing clearly the fact of publication. See 2 Starkie's Ev., 454. Starkie on Slander.
The libel having come to the hands of the appellant against whom it was published, became his property; and he had a right to the possession of it. And, parting with that possession for a time, for the purposes of justice, did not determine that right; and he was entitled to a return of it in accordance with the conditions upon which he parted with it.
As to the bond, it is drawn in strict compliance with the statute under which the appeal is taken.
It is not necessary that it should appear by the record that an appeal was granted in the Court below. If an appeal is applied for in open Court, and an appeal bond is approved by the judge, this is a full compliance with the statute.
Opinion
[*398] MACREA, J., delivered the following opinion:
This case comes before this Court upon a motion made by the counsel for the appellees to dismiss it, on the following general grounds: First, that the appeal sought to be prosecuted here from the order in this case in the Court below, was not obtained according to law: and, secondly, that no appeal lies from said order, whether by the rules of common law, or in virtue of the statutes of Florida, giving the right and regulating the mode of suing out writs of error and prosecuting appeals.
It appears from the record in this case, that a rule nisi was granted by the Judge of the Circuit Court for the Eastern Circuit, for the County of Duval, conformably to the prayer of a petition which had been filed by the appellee before said Judge, by which rule it was ordered that appellant show cause before said Circuit Court, at the then next ensuing term thereof for said county, or so soon thereafter as counsel could be heard, why an ex parte order formerly made by the same Judge, giving said appellant leave to withdraw a certain "written paper" from the files of said Court, should not be revoked and rescinded: and why he, the appellant, ought not to return the said "written paper" to the files of the same Court; copies of which [*399] order and petition were duly served upon the appellant, who answered thereto in writing. It further appears, that the matter of said petition and answer having been fully heard and considered by said Court, at the last term thereof, it was by the same thereupon ordered, that the order above mentioned granting to the appellant the possession of the paper the subject of said rule be annulled, and that the said paper be returned by said appellant to the files of the Court by a day appointed in the order. It also appears that said appellant, having in open Court applied for an appeal from the order last mentioned, thereafter in open Court filed his bond for said appeal in the usual form, conditioned to pay the condemnation and costs in case the said order should be confirmed by the Appellate Court; which bond was endorsed, "approved of," by the Judge of said Circuit.
We deem it unnecessary, in order to a decision of this motion, to determine the points arising upon the first ground taken by the counsel for the appellee. It may, however, be proper to remark, that the acts of a Judge of a Circuit Court, in relation to any application for an appeal to which a party may be entitled in virtue of the provisions of the Acts in question, are to be regarded as simply ministerial in their character and effect.
With regard to the other ground assumed by counsel for appellee, we are of the opinion, that clearly no appeal from an order of the tenor and effect of that which has been brought in question before this Court, will lie, either at common law, or in virtue of the several Acts of the Legislature of Florida giving the right and regulating the mode of suing out writs of error and prosecuting appeals, or either of them.
That this appeal does not lie at common law, is sufficiently apparent from a consideration of the nature, form and objects, of the common law processes, by means of which the judgments of inferior tribunals may be reviewed. These are writs of error, prohibition, certiorori and mandamus. Any other mode is unknown in a Court proceeding as a Court of common law jurisdiction, unless expressly given by statute; and where the latter limits the operation of appellate power to specific subjects, or classes of cases, this Court has no power to transcend the limits so assigned. Murdock, appellant, 7 Pick. 320. At common law, as is well expressed and held in 1 Chitty's Arch. Prac., 346, "a writ of error lies, when a person is [*400] aggrieved by an error in the foundation, proceeding, judgment or execution, of a suit, provided it be an error in substance, not aided at common law, or by some of the statutes of jeofails. It can be brought only on a judgment, or an award in the nature of a judgment, given in a Court of record, acting according to the course of the common law; but when the Court acts in a summary way or in a new course different from the common law, a certiorari, and not a writ of error, lies.
But again, at common law, the appellate power extends to matters of record only; and here it may be remarked, that a matter of proceeding, spread upon the record or minutes of the Court, not being properly a record matter or proceeding in legal regard, does not thereby become such; nor can it be therefore made a subject upon which to exercise appellate power and jurisdiction. Are, then, rules of the legal character of that now under consideration in this case, properly matters of record in legal contemplation? We think not. In England it is held that rules are not records, but mere remembrances not entered on the rolls of the Court. 9 Bing. 125. Tidd's Prac., 490; and the cases there cited in 1 Wills. 40, and 2 Barn. & Ald. 61. In the correctness of this doctrine we fully concur, and consider it applicable to similar proceedings of the Courts of this State, embracing the case now before us. Moreover, it is held in English practice, "that if a cause be moved in Court in the presence of the counsel for both parties, and the Court shall thereupon make an order, no person shall afterwards cause the same to be moved contrary to such rule or order;" and that "a rule made in the Bail Court is not more liable to be re-opened and argued in Full Court after the term in which it was made, although the Judge who heard the case sanctioned the application to the full Court." 2 Chitty's Arch. Prac., 1194. The principles involved in this authority well apply to the case of which a review is now sought at the hands of this Court; and we deem it superfluous to add anything further in order to illustrate and sustain the opinion, that at common law, this Court has no appellate power or jurisdiction over this case.
But it is contended by the appellant, that the right of appeal in question, is conferred by statute; and he refers to the Act of the Legislative Council of the late Territory of Florida, now in force, on this subject, contained in Duval's Compilation, p. 108, sections 1 & 2, [*401] in support of his position. By sec. 1 of the first mentioned Act, it is provided, "that if a party, in either of the Superior Courts of this Territory, shall be aggrieved by a final judgment, sentence or decree made, or pronounced, by any or either of said Courts, it shall and may be lawful for such party, during the session of the Court at which such judgment, sentence or decree is rendered or pronounced, or within ten days thereafter, to obtain in Court, if the appeal be made in term time, or in the Clerk's office if it be in vacation, his, her or their appeal to the Court of Appeals," &c. Section 2 provides, that the party appealing, if defendant, shall give "bond with one or more securities, in a sum sufficient to cover the amount for which judgment has been given, decree rendered, or sentence pronounced, together with costs, conditioned that the appellant shall pay the costs, if plaintiff, or if defendant, the debt, damages or condemnation, and costs in case the judgment, sentence or decree of the Superior Court shall be affirmed," &c. This section evidently refers to cases of suits, actions or causes in Court, in which there are adversary claims in a regular course of litigation. The case under consideration here is not one of those just referred to, but properly belongs to that numerous class of rules and orders of a summary character, which a Court of record is empowered in its discretion to make in regard to causes herein pending or determined, or otherwise relating to the record, proceedings and files of the Court, in the exercise of its inherent powers of general superintendence and control over all matters affecting its dignity and policy, or its due and rightful administration of the laws. And such matters are not subject to be reviewed by writ of error or appeal, in the halls of superior tribunals. This view is fully sustained by the principles advanced in the decision of the case of Willis vs. Willis, Adr., 5 Iredell's N. C. R., 14, founded upon a statute of North Carolina similar to that above recited; and is fortified by other determinations and authorities, some of which have been already cited.
The appellant again contended that the Act just mentioned, if otherwise inapplicable to the case before us, is nevertheless made so by construction to be derived from the terms of the second section of the Act last above mentioned, passed subsequently to the former. We are unhesitatingly of a contrary opinion. The 2d section referred to provides, "that in all cases in which a rule of Court, or other summary [*402] order to any of the officers of Court and their securities or deputies, is in effect a judgment for the payment of money or other thing, the party aggrieved may prosecute his, her or their appeal, writ of error or certiorari," &c., as therein set forth. It is insisted that the words "rule or other summary order," used in this section, show that the Legislature construed and intended the words, "judgment, sentence or decree," contained in the first recited Act, to embrace rules and orders of the nature and effect of that from which an appeal is now sought. We consider this construction manifestly erroneous. This section, indeed, not only limits the right of appeal strictly to the cases therein provided for, but agreeably to the maxim, "expressio unius est exclusio alterius," goes further to establish the construction which we have placed upon the first and second sections of the Act first above mentioned, the provisions of that Act being extended, yet limited to cases of rules and other summary orders affecting officers of the Court, and their securities or deputies, where such rules or orders do, in effect, operate as a judgment for the payment of money or other thing. This motion is therefore sustained, and the case dismissed.
Per totam Curiam.