Webster v. Hopkins

Bacon, Justice. The error into which, in my view of the case, the learned county judge has fallen, is in mistaking the office or function of the notice of appeal; and also the remedy which is to be applied where a defect exists in the notice. > By the Code of 1848, if a party, against whom a judgment had been rendered, desired to review the proceedings and judgment by appeal, he prepared an affidavit, in which he was required to state the substance of the testimony and proceedings before the justice, and the grounds upon which the appeal was founded. If the opposite party deemed the affidavit to be erroneous or defective, he could correct omissions or misstatements therein by an affidavit on his part, and the appeal might be heard on those papers only.' But the court had power, if the affidavits were contradictory or defective in material points, to direct the court below to make a return of the testimony and proceedings, and then the appeal was heard on all the original papers in the case, and which were to constitute the judgment-roll, to be filed in the cause. By the Code of 1851, the provisions of which are now in force, the system was somewhat changed, and instead of the affidavit of the party desiring to appeal, he is required to serve a notice of appeal within a given period on the justice and the opposite party; which notice is to “ state the grounds upon which the appeal is founded.” The justice then makes the return, and upon that return the appeal is argued—(Code, § 364)—and the return on which the appeal was heard is to be filed with the clerk, and constitute the judgment-roll. The office of the notice of appeal, therefore, is to require and enable the justice to make a full and complete return of the entire proceedings in [146] the cause, and especially to call his attention to the matters which are particularly relied upon to reverse the judgment he has rendered. It gives the court jurisdiction of the parties and the subject matter; and having accomplished this end, its function is performed. It is no indispensable part of the papers upon which the appeal is to be heard in the court above ; and it is no more necessary that it should appear in the printed case than the certificate of a justice of the supreme court, without which no judgment can be reviewed by appeal from the county to the supreme court. If, indeed, the notice is utterly defective in stating the ground of the appeal, the mode of taking advantage of that defect is by a motion to dismiss the appeal; and such was the practice under the old system anterior to the Code, where, in the affidavit which the party was required to make in Order to obtain an allowance of the writ of certiorari, “ the grounds upon which an allegation of error is founded,” was to be stated. In the case of People agt. Suffolk Com. Pleas, (18 Wend. 550,) referred to by the county judge in his opinion in this case, that was the purport of the decision. The common pleas, on account of this defect, says Bronson, J., “ should have quashed the certiorari.” And to the same effect precisely is the case of Williams agt. Cunningham, (2 Sand. 632,) which was a motion to dismiss the appeal; and it was decided on the ground that ;the affidavit on which the appeal was founded did not make any specification of the errors which it was alleged the court below had committed. This being the rule applicable to this case, it became the duty of the county court to look into the return, and see if the justice had committed any error in law which required a reversal of the judgment. The return shows that neither of the defendants appeared upon the trial; and.that after the testimony had been closed, the cause was held open until the ensuing day, when the plaintiff again appeared and moved to amend his complaint by complaining against Hopkins alone, and discontinuing as to Clark, which motion was granted; and the court, thereupon, rendered a judgment of discontinuance as to [147] Clark, and at the same time a judgment against Hopkins as sole defendant, for $70, besides costs. This was clearly erroneous. Before the Code, it is too clear to require the citation of an authority, that no court had power to amend the process or the pleadings in an action against two or more defendants on a joint contract, by striking out the name of a co-defendant, and rendering judgment against one, and in favor of the other, save in one or two exceptional cases, where a defence strictly personal, as infancy or bankruptcy, was allowed to prevail. The Code has altered the entire rule on that subject; but the sections which give that power to the courts are confined to actions pending in courts of record, and have no application to justices’ courts. The provisions in respect to amendments by adding or striking out the names of parties and the correction of mistakes, &c., are found in a distinct part of the Code, under title VI., which obviously, and in terms, has reference to the pleadings in civil actions, and is ex necessitate confined to courts of record, which are clothed with discretion in reference to the terms upon which amendments shall be allowed, and possess the appropriate machinery by which their orders may be enforced. It would be a very indiscreet legislation which should attempt to impart to justices’ courts a power of this character and importance ; and I am satisfied the authors of the Code could never have contemplated it in the original construction of the system ; nor have the legislature, in the various revisions through which it has passed, ever extended it to this length. The utmost extent to which the general provisions of the Code, in reference to fictions and the parties thereto, &c., have been made applicable to proceedings in justices’ courts, will be found in the 15th subdivision of the 64th section, which enacts that “ the provisions of this act (the Code) respecting forms,of action, parties to actions, the rules of evidence, the times of commencing actions, and the service of process upon corporations, shall apply to these courts.” These all point to specific provisions in the Code on those particular subjects, and necessarily exclude from the action of these tribunals, those [148] sections where the power of granting amendments is alone derived. This conclusion commends itself to us as the only one which if would be reasonable and safe to adopt; and, in a recent case arising in the 4th district, the justices at general term seem to have arrived at the same result. In the case of Gates agt. Ward, (17 Barb. S. C. R., 424,) the justice, on the return day of the summons, amended the process so as to drop the name of one of. the plaintiffs, and the cause was then adjourned. On the adjourned day the plaintiff moved to restore the name which had been dropped, and also to amend the complaint by entitling it in the name of both plaintiffs, and this motion was granted; and the cause was tried, and resulted in a verdict for the plaintiffs. The county court affirmed the judgment, but on appeal the supreme court reversed both judgments, holding that the court had no power, after allowing an amendment by striking out the name of a party, to restore it again when objected to by the defendant. Speaking, in the course of his opinion, on the power of the justice in respect to amendments, Mr. Justice Hand says, “I doubt the power'of the court to grant the first amendment. Even this court, before the Code, though a mistake in the name of a party could have been corrected, could not as a general rule, especially after declaration, change the parties.” Again, he says, “ The rules prescribed by the Code, as to the necessary parties to an action, are applicable to them, so far as consistent with their constitution and duties. But the authority to amend by adding parties, is a different thing. It could not have been intended to give-to them the same general power in this respect as is possessed by this court. The system is not adapted to the proper exercise of that power. Indeed, I think § 173 is inapplicable to these courts.” In these views I entirely concur;- and the result is in this case, that the judgment of the justice, and of the county court, must be reversed.