Fuller v. Bates

Mulkey, J.: This is an appeal from the Appellate Court for the Second District, affirming the judgment of the court below in a case in which the amount in controversy, as well as the judgment in the court below, was less than $1000, and without any certificate from the Appellate Court showing the grounds upon which the appeal had been allowed. Appellee enters a motion to dismiss the appeal for these reasons, and this motion is resisted by appellant on two grounds. First, it is claimed that since the act of 1879, requiring the clerk, in making up the record in cases of an appeal from the Appellate to this court, to send up the entire record in the Appellate Court, together with all original papers and files pertaining to the case, no such certificate is required,— that the reasons which originally induced the legislature to require such a certificate have ceased to exist by reason of the passage of the act above referred to, and it is therefore claimed that the law itself has ceased; secondly, it is insisted that inasmuch as the opinion of the Appellate Court affirming the judgment of the court below, states the grounds upon which the appeal was allowed, the opinion itself must be regarded as a substantial compliance with the statute in that respect, and that no other or further certificate is' necessary. In the view we take of the matter, neither of these positions is tenable. The doctrine that when the reason of a law ceases, the law itself ceases, we understand has no application to statutory provisions,—it only applies to the rules of the common law. A statute, although the reasons for passing it may have altogether ceased, or may have been misconceived or ill-founded upon its adoption, is, nevertheless, if constitutional, a part of the positive law of the land, and, as such, must be observed. With reference to the other position, it is sufficient to say that, while the opinions of the Appellate Courts in affirming judgments are useful to the profession generally, and particularly to the parties and counsel who are personally interested in the cases in which they are rendered, yet, they are not required by law, and can not be regarded as any part of the record. The opinion in question, therefore, not being a part of the record, can not be looked to in determining the rights of the parties here. There is also a cross-motion filed by appellant, asking that a rule be issued in this court directing the judges of the Appellate Court to make the necessary and proper certificate in this case. We understand this court has no power to do so. This is a matter left in the sound and exclusive discretion of the Appellate Court. But inasmuch as it appears, from the statement accompanying appellant’s cross-motion, that the Appellate Court refused to certify the case to this court upon the hypothesis that the law requiring a certificate was, for the reasons above stated, no longer in force, we are of opinion the case ought to be continued until the next term of this court, so as to afford in the meantime an opportunity to make a formal application to the Appellate Court for a proper certificate under the statute, and that will be the order in the case. Motion denied.