Commonwealth ex rel. Snyder v. Mitchell

The order quashing the writ of error was entered in the Supreme Court, Per Curiam. We are of opinion that this writ of error was prematurely taken. The 27th section of the fifth article of the New Constitution does not execute itself so as to be independent of the legislation necessary to regulate the practice under it. It vests the right in the parties, by agreement in civil cases, to dis [59] pense with trial by jury and submit the decision of the case to the court having jurisdiction to hear and determine it, subject to a writ of error as in other cases. But when and how shall the court hear and decide the case ? The jury being dispensed with, the hearing implies a trial before the court and the determination of the facts as well as the law. What law shall govern the court in this proceeding, and compel the judges to place the case in a situation to give the party his writ of error, in such manner that he* may reap its advantage ? The Constitution does not say the court shall put in writing the facts found, or answer the positions taken by the parties in writing. It is simply to hear and determine. How hear and determine? How shall a record be made to exhibit the errors of the court ? This the second section of the Act of 22d April 1874 answers. When shall the court determine after the hearing ? This also is answered. How shall the party have the finding of the facts revised if he think there has been error, and when shall he be compelled to seek his redress ? Besides, the court itself may have fallen into error it would correct. Without the law there is no regulation, no compulsory proceeding, and the whole matter would rest in the discretion of the court. Such a mode would be unsatisfactory. The truth is, the constitutional provision would be a mockery without the necessary regulation of the statute to carry it into execution and give it full effect. The judgment in this case was therefore not final, but was subject to the proceedings in the court below, by exception and otherwise, to bring the case to a legal conclusion. The writ of error was therefore premature, and is to be quashed.