Breemer v. Burgess

Opinion by Greene, Chief Justice. It is claimed by the defendant in error that the Statute of 1883, respecting the Taking of Appeals to this Court, is valid, and applies to cases in error, and that it has been complied with in this particular cause ; that, nevertheless, there is still wanting to give this Court jurisdiction to hear the cause on its merits, an assignment of errors in a notice served and filed as is prescribed in Secs. 458, 459, and 460, of the Code of 1881. This we think a mistake. In the first place, we have no doubt of the validity of the Statute of 1883. Even Section 3, where it provides that the District Judge, in settling a statement of facts, “ shall sign any statement agreed upon by the parties or their attorneys,” requires nothing contrary to constitutional right; for comparing the section with the sections preceding it, the facts so to be stated appear to be such facts as are in the cause, the material evidentiary facts, the facts as actually put forward in evidence on the one side, and on the other side at the trial or hearing — not ultimate facts deduced from the evidence, but the facts as the evidence on the one part and the other propound them for judicial deduction of the ultimate facts, to be embraced in findings or verdict. Any other view would be a departure from the word “ facts,” as used in the aot itself, and also from that part of our Organic Law which [294] guarantees to a party the substance of that review which an appeal, or bill of exceptions and writ of error afford. Although neither the term “ writ of error,” nor that of “bill of exceptions,” appears any where in the act, and although the only term used therein to signify a proceeding in this Court for review, of a matter on which the District Court is posted, is the word “ appeal,” yet we think the intent of the Legislature clearly is to provide a mode of reaching this Court in any sort of a case proper for this Court to review. While we are not ready to say that the provisions of Section 3, for a statement of facts, are exclusively applicable to a case at law, we are of opinion that they have a special and ordinary application to such cases. This Statute of 1883 we regard, then, as a permissive and cumulative enactment. The words “may’’and “shall’’seem to be used in it with discrimination, and of particular purpose throughout. There is no intent apparent to repeal the old law. Cases may now be brought up to this Court, either by the procedure prescribed in the Code, or by that provided in the Statute of 1883. A party has his option. In cases brought up under the law of 1883, errors will be assigned as this Court shall by rule direct. Motion denied. We concur: George Turner, Associate Justice.