Commonwealth v. Judges of Common Pleas

Til ohm an C. J. This is a motion for a rule on the judges of the court of Common Pleas to shew cause why a mandamus should not issue, commanding them to admit an appeal in the case of Lee v. Ridgway. An appeal was entered in the court of Common Pleas from the judgment of an alderman of the city of Philadelphia, under the act of 28th March 1804, 6 St. Laws 383., sect. 4, commonly called the one hundred dollar act. The court of Common Pleas, conceiving that the appeal was not entered according to law, ordered it to be struck off. There are many difficulties in the way of this motion. Without entering into the right of this court to issue a mandamus to the court of Common Pleas, should a proper case be brought before us, it is to be observed, that in the present instance, the court of Common Pleas has proceeded to give judgment, or at least to make an order in a cause which was entered on their records. In the case of the United States v. Lawrence, 3 Dall. 42., it was determined by the Supreme Court of the United States clearly and unanimously, after full argument, that although they might command an inferior judge to proceed to judgment, yet they had no power to compel him to decide according to the dictates of any judgment but his own. Upon this principle it would be improper for us to issue a mandamus, because' the court of Common Pleas have already decided according to the dictates of their own judgment. But there is another reason decisive against the motion. It is conceded hy the counsel who made [276] it, that if a writ of error lies in this case, a mandamus ought not to issue. It appears to me that a writ of error does lie. The rule is, that a writ of error lies in all cases where a court of record has given a final judgment,, or made an award in nature of a judgment. 9 Vin. Abr. 474. A. 2. pl. 6. Now the striking off the appeal is certainly in nature of a judgment. It is the act of the court dismissing the appeal, and thus making an end of the cause. It matters not in what form this order is made. It is substantially in nature of a judgment. I am therefore of opinion, that the rule should not be granted. Yeates J. I intirely abstain from intimating any opinion, Whether under the constitution of our courts, a mandamus would properly lie from this court to any of the courts of Common Pleas of this commonwealth. Admitting however, that such would be a legal remedy, I do not apprehend that it would lie in the present instance. In the case of Lee v. Ridgway pending in the Common Pleas, and which was submitted to arbitration under the one hundred dollar act passed 28th March 1804, that court held, that the transcript of the record should be filed on the appeal within twenty days after the decision, and for defect thereof in that case, the court dismissed the appeal. This I take to be a final judgment on which a writ of error would lie, and a complete remedy be afforded to the party, in case the opinion of the court below on the construction of the act of assembly was incorrect. While the order of dismission is in full force, nothing further remains to be done in that court. It is admitted, that a mandamus will only lie, where there is no other specific remedy; but such remedy occurring here, I am of opinion, that the rule to shew cause why a mandamus should not issue to the justices of the court of Common Pleas, be denied. Brackenridge J. gave no opinion, having been engaged in holding a court of Nisi Prius during the argument. Rule refused.