Foss v. Bogan

Mr. Justice Mercur delivered the opinion of the court, January 5th 1880. That the .maker of a note may, by his contract therein, waive the right of appeal, so as to be bound by the waiver, is well-settled: Rheem v. Allison, 2 S. & R. 114; Pritchard v. Denton, 8 Watts 372. In the present case, the transcript from the docket of the justice of the peace, showed the judgment was rendered on a note, but did not show that it contained any waiver of the right of appeal. The defendant in the judgment appealed therefrom. The court below, on parol evidence that the right of appeal had been waived in the note, struck off the appeal. This is the error assigned. As the right of appeal is given by Act of Assembly, a party cannot be deprived thereof, except by his express agreement. How may that agreement be shown ? How shall the Common Pleas, when no fraud or want of jurisdiction in the justice is alleged, inquire into the cause of action before him ? Shall it be by inspection of the transcript, or by parol evidence? Manifestly by the former. A court of error cannot look beyond the record. A paper does not become a part of the record merely by being filed. It required an express statute to put depositions on the record, and that can be done only by bill of exceptions. An inquiry by the court as to the proceedings before the justice is wholly different from an inquiry into the execution of its own [298] process. Wherever the justice’s transcript shows the cause of action, it cannot be supplemented or changed by parol evidence for the purpose of depriving a party of a trial by jury: Dawson v. Condy, 7 S. & R. 366; Delaware & Hudson Canal Co. v. Loftus, 21 P. F. Smith 418. Judgment striking off the appeal is reversed, and the case ordered to be reinstated, and to be proceeded in according to law.