Haight v. Gay

Burnett,. J., after stating the facts, delivered the opinion of the Court—Terry, C. J., concurring. The appellate power of the Supreme Court is given by the fourth section of the sixth article of the Constitution, which expressly empowers this Court to issue all writs and process-necessary to the exercise of its appellate jurisdiction. The Legislature, therefore, can pass no act impairing the exercise of this appellate power. But while the Legislature cannot substantially impair the right of appeal, it is certainly competent to regulate the mere mode in which this right must be asserted. The Constitution only empowers this Court to issue such writs and process as may be necessary to the exercise of its appellate jurisdiction; if this appellate jurisdiction can be exercised without, this process, then it cannot be necessary, and should not be issued. In the case of Savage v. Gulliver, 4. Mass. R., 177, it was said that “ the statute, in giving an appeal, has, in our opinion taken away', by a reasonable implication, the remedy by error, unless in cases where the aggrieved party, without laches on his part, could not avail himself of an appeal.” See also, 6 Mass. R., 4; 2 Gillman’s R., 65; 13 I11. R., 144. But the construction of our Practice Act is not left to rest upon reasonable implication. The ninth title of the act relates exclusively to appeals, and the three hundred and thirty-third section provides that “ a judgment or order in a civil action, except when expressly made final by the act, may be reviewed as prescribed by this title, and not otherwise.” This provision is plain and positive, that a judgment or order, may be received as prescribed by that title, and, not otherwise. If, therefore, an appeal be given by that title in a- particular case, the judgment or order can only.be reviewed in the manner therein prescribed. In reference to cases where no appeal is given, this negative provision, “ not otherwise,” could not apply. Our conclusion is, that in all cases where an appeal is given by the statute, that remedy is exclusive and. must be pursued, and that a writ of error will only lie in cases where ho appeal is given by the act. If, from any excusable cause, the party has been prevented from prosecuting his appeal, his remedy is by motion to reinstate the case. And if he has been prevented from making this motion at the same term of the Court at which the appeal was dismissed, he may, upon a proper showing., and after due notice to the respondent, make the motion at a subsequent term. The rules of this Court are always under its control, and "their application may be enlarged in special cases. Motion sustained.