Cunningham v. Dixon

Lore, C. J., delivered the opinion of the Court. The first and second exceptions are, that the judgment was rendered by the justice against one of two defendants, jointly sued, upon a joint cause of action. The record shows that Esther Cunningham, the defendant, and William Cunningham, were both joined in the action, but service was had only upon Esther, and judgment was rendered against her. It is settled in this state that where all the joint debtors are joined in the action, judgment may be rendered against such of them as may be served with process and are in court ; Jackson vs. Hedges, 4 Harring. 96; Reybold vs. Parker, 6 Houst. 544. In the latter case the opinion of Houston, J., reviews the law and practice on the subject. These exceptions must therefore fail. The third and fourth exceptions set forth that the record does not show that the plaintiff was a bona fide resident ef the hundred where the Justice of the Peace resided, nor that the defendants, or either of them, resided in the same hundred with the Justice or in the adjoining hundred. The act of Assembly of April 8, 1881, Chap. 340, Vol. 16, Laws of Delaware, provides as follows: Sec. 2. “ That from and after the passage of this act the jurisdiction of the several Justices of the Peace now appointed or hereafter to be appointed in and for New Castle County, shall extend only to the hundred for which they were appointed and in which they reside, and to the adjoining hundreds, and no action shall be brought or maintained before any Justice of the Peace appointed for or residing in any [165] hundred in New Castle County, against any person who does not reside within the same' hundred of the said Justice of the Peace, or within a hundred immediately adjoining.” Sec. 3, provides that every “ judgment rendered by a Justice of the Peace in New Castle County in civil causes, contrary to this act shall be void,” and subjects the constable who shall serve any process in any such case, to a fine of one hundred dollars. Sec. 4 makes any Justice of the Peace who shall wilfully and knowingly issue any process, in any such case, guilty of a misdemeanor, and liable on conviction, to a fine of from fifty to one hundred dollars. Such conviction shall also “ work a forfeiture of his office. ” Under this law, this Court has uniformly reversed the judgments of Justices of the Peace, in certiorari cases, where the record did not set out the residence of the parties, and carry upon its face the evidence of jurisdiction. Not, we apprehend, because the judgment was invalid for want of jurisdiction, but because the facts showing jurisdiction were not exhibited or set forth on the record. By the act of April 20th, 1887, Chap. 32, Vol. 18, Laws of Delaware, the Legislature amended the act of April, 1881, and expressly provided “ That no judgment in a civil suit rendered before the Justice of the Peace, in and for New Castle County after the passage of the said act and prior to the passage of this amended act shall hereafter be reversed or invalidated on account of one record of such judgment failing to exhibit the residence of the parties thereof.” The latter act is inartificially drawn, but is not ambiguous or uncertain, and expressly says that no judgment rendered between April 8, 1881, and April 20, 1887, “shall hereafter be reversed or invalidated for failure to exhibit the residence of the parties thereof.” In the case at bar judgment was rendered October 31, 1885. The certiorari issued July 6, 1886; the exceptions were filed November 25, 1886. The judgment was therefore rendered between April 8, 1881, and April 20, 1887, and the certiorari was pending when the act of April 20, 1887, was passed. The case is therefore clearly within the terms of the amend [166] ment of 1887. The Court is at a loss to see what right it has to disobey the express mandate of this law and nullify its provisions. The argument of counsel on this point was very meagre, and the Court is left to determine the law without assistance from that source. It will not be questioned, we think, that the Legislature has the right to say what docket entries shall be necessary on the records of a Justice of the Peace in any action. If so, it necessarily follows that it has the power to say what shall be the effect of making or the failure to make such entries. This is all that the act of 1887 does. It is not a question of jurisdiction, but of the evidence of the jurisdiction shown upon the docket of the Justice. Jurisdiction is absolutely independent of docket entries. It is given by the statute of the State. No docket entries can give jurisdiction or take away jurisdiction from a Justice of the Peace. Jurisdiction is a substantive fact, and docket entries are only evidence of that fact. Where courts are confined to the records itself, as in certioraries, and the evidence of jurisdiction is not spread upon the record the judgment will be reversed, not for want of jurisdiction, but for the want of the evidence of such jurisdiction. Where the Court, however, permits itself to go outside of the record, and finds as a fact that the court below had jurisdiction, even though it was not set forth on the record, it would not reverse such judgment. Should it so reverse, it would result in the absurdity of reversing a judgment for want of jurisdiction in the Court below, when the evidence showed that jurisdiction actually existed. It must therefore be apparent that the question we are called to pass upon does not touch jurisdiction or upon the validity of any contract, but is simply as to a matter of evidence, which is to govern the Appellate Court when called upon to review the judgment of the court below. The fact that this was lis pendens at the time of the passage of the act of April 20, 1887, does not alter the case. Cooley on Constitutional Limitation, 381, says: “The bringing of a suit vests in a party no right to a particular decision, nor does the pen [167] deucy of an appeal or of a writ of error, for his case must be determined on the law as it stands, not when the suit was brought or the appeal taken, but when the decree or judgment in the pending suit is rendered.” This doctrine is, in our judgment the same as that broadly laid down in Cook vs. Gray, 2 Houst. 455, and affirmed by the Court of Errors and Appeals in Gray vs. Cook, 3 Houst. 49. This was one of the most interesting cases ever tried in this State. It was thoroughly argued by able counsel, both in the court below and above, and was passed upon by as able Judges as ever sat in our courts. It is quite in line with all the authorities we have consulted and is based on established principle. Indeed we have found no well considered case to the contrary. It might be said in passing, that this view of the law works no hardship in the case at bar. If the Justice had jurisdiction in fact, although it may not be disclosed on the face of the record; it is just that the judgment should stand and be enforced. If on the other hand, he had not jurisdiction in fact, then by the terms of the act of April 8, 1881, and which are not disturbed by the amendment of 1887 the judgment is void. Its enforcement may be restrained. The constable who served the writ is subject to a fine of one hundred dollars. The Justice who issued the writ to a fine of not exceeding a hundred dollars, the crime of misdemeanor and forfeiture of his office in case of conviction. The defendant therefore has ample and drastic remedies. We think, therefore, this judgment should be affirmed. JSTo sound reasons have been given to us, and we have been unable to find any which would justify the Court in disregarding the express language of the act of April 20, 1887, which says : “The judgment shall not be reversed or invalidated.” Ho opinion is expressed as to the constitutionality of the act of April 8, 1881, limiting the jurisdiction of Justices of the Peace for this county. The question was not raised and is not therefore [168] before us, the practice of the Court in certiorari cases being to consider and pass only on the questions raised by the exceptions. Let the judgment he affirmed. .