Rathbun v. Moody

Atwater, J. By the Court. The action below, npon complaint, answer and reply, was referred to W. Wilkin, Esq., to hear, try and determine the same, and that judgment he entered on the decision of the said referee, in the same manner as if the action had been tried by the Court. There was a stipulation by the attorneys for the respective parties “ that [365] the report of the referee in tbe aboye entitled action, be included in and be made a part of tbe record in tbe action, that tbe Defendant may appeal therefrom to tbe Supreme Court, whether tbe decree therein be or be not signed and enrolled, and for tbe purposes of such appeal tbe said report be regarded as tbe final determination of tbe cause in tbe District Court in case tbe appeal shall be taken before'such decree shall be signed and enrolled.” Tbe report and supplemental report of tbe referee appears in tbe paper book furnished tbe Court, but there is no evidence from tbe record that tbe same has been filed with tbe Clerk of tbe District Court of Scott County, (where tbe cause originated) nor that any judgment has Been entered thereon. Tbe attorney for tbe Despondent now revokes tbe stipulation above quoted, on tbe ground that tbe attorney for tbe Appellant bad agreed to stipulate for tbe insertion in tbe record of some parts of tbe testimony given before tbe referee, which was a condition, as tbe counsel for tbe Despondent claims, on which be signed tbe stipulation, and which agreement tbe Appellant afterwards refused to perform. Tbe attorney for tbe Despondent now urges that this Court has no jurisdiction of tbe cause, and asks that tbe appeal be dismissed. In this case there is no record of tbe proceedings in tbe Court below certified to this Court, and tbe paper book comprising tbe pleadings, stipulations, and report of tbe referee, and notice of appeal, (made up probably by tbe attorney for tbe Appellant) is tbe only means by which this Court is advised of what has transpired in tbe action. Tbe jurisdiction of this Court is appellate only, (except in such special proceedings as tbe statute has provided for) and judgments or orders in a civil or criminal action, in any of tbe District Courts, can only be removed to this Court by appeal or writ of error. (Chap. 56, Sec. 4, Comp. Stat. p. 475, and Chap. 71, Sec. 1, 11 and 22, p. 621.) There is no provision for conferring jurisdiction on this Court by stipulation. After a Court has acquired jurisdiction of a cause, parties may doubtless stipulate to waive errors, or to waive proceedings required by statute, but consent cannot confer jurisdiction where a statute has provided that it can only be acquired in a certain manner. This Court might consent to bear a cause not brought by appeal or writ of error, [366] at the request of both parties, but it would be only discretionary, aud a method of review which would uot be regarded with favor by the Court. And iu such case, should either party at the hearing raise the objection that jurisdiction had not been acquired, this Court would not entertain the cause, whatever stipulations might have been made in regard to the removal of the cause, but leave the parties to their legal remedies. The jurisdiction of Courts is conferred by law, and in no case by consent of parties. Burckle vs. Eckhart, 3 Comst. 137; Bents vs. Graves, 3 McCord, 280; Lindsey vs. McClelland, 1 Bibb. 262; 4 McCord 80; Coffin, ex. &c. vs. Tracey, 3 Caines Rep. 129; 8 John. 409; 13 John. 218. The appeal must be dismissed. Emmett, C. JV — Elandrau, J. Since the examination of this case upon the paper books furnished us, we have been requested by the parties to examine the original return, and some further stipulations not contained in the paper books — which we have carefully done. Such examination only serves to confirm the views which we have before expressed.