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The State ex rel. v. Baker-Argument of Counsel.

rious as almost can be imagined.” Powell on Appellate Jurisdiction, 76.

In Massachusetts, "where appeals are allowed, the cases are tried again upon their merits, and not reviewed in error. It vacates the judgment below, and the court above must make a new judgment,” and this is held in that State to be the exercise of appellate jurisdiction. Kingsbury vs. Doan, 19 Pick., 530; Paine vs. Cowdin, 17 Pick., 142.

In Pennsylvania “appeals are allowed in many cases, but they are properly treated as a step in the cause or continuance of it from one court to another by taking the necessary proceedings within a limited time, and then the case is to be tried in the court above upon its facts and merits. This is in accordance with the true distinction between appeal and writ of error or review, when these terms are properly applied.” Powell on Appellate Proceedings, 93 ; ! Binn., 219; 3 Binn., 45; 10 S. & R., 227.

In Ohio, also, a party failing in the court below "could take the case by appeal to the next appellate court, where the case was to be tried de novo on the issue made up between the parties, without regard to the former trial or any errors therein committed.” Powell on Appellate Proceedings, 94.

In Virginia and other Southern and Southwestern States “the mode of appellate procedure is generally by appeal and review in cases in chancery or equity, and writs of error in cases at law;" "but this depends on the statutes and codes of the several States, which are often very unlike and frequently disregarding the distinction between appeals and errors.” “In some instances appeals are allowed in cases at law, and in some even in criminal cases.” Powell on App. Proceedings, 96. .

It will be very plainly seen that the exercise of appellate jurisdiction has not by any means been limited to a review

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The State ex rel. v. Baker-Argument of Counsel.

of errors appearing in the court below as shown by a bill of exceptions or something of like nature. And a review of authorities will indicate that the manner of the exercise of such jurisdiction depends very much upon the statutes giving the right of appeal rather than upon the jurisdiction clause giving appellate powers. In all the States above Inentioned the courts referred to had appellate jurisdiction, yet in the exercise of such jurisdiction they “tried cases de novo," and "tried cases anew upon their merits” in order to comply with statutes requiring it.

In New York and some other States appellate jurisdiction is exercised by a review of errors of the court below as appears by the record, this being in conformity to the laws of those States.

The case principally relied upon in the court below was the case ex-parte Henderson, 6 Fla., 279, particularly the language, page 289.

But the same question is not presented in this case as in that. The Constitution is different, and language is different conferring jurisdiction upon the Circuit Court.

In the Henderson case in 6 Fla., the Circuit Judge refused to exercise appellate jurisdiction because it was not specifically conferred by the language of the Constitution, the Judge holding that appellate jurisdiction was not conferred exclusively upon the Supreme Court. The conclusion arrived at in that case was “that whether the jurisdiction to be exercised in the case be original or appellate, the Circuit had the power and should exercise it."

The manner in which appellate jurisdiction should be exercised by the Circuit Courts was not before the court for adjudication. If, however, anything can be inferred from the whole tenor of the opinion of the court, it is that in the exercise of such jurisdiction the Circuit Courts should "try cases anew on their merits" because the statute in force at

The State ex rel. v. Baker-Argument of Counsel.

the date of the decision required it, and the court nowhere in its opinion declares such statute unconstitutional. On the contrary it says that the exercise of appellate jurisdiction by the Circuit Court in conformity to the statute then existing, which granted trials de novo, had worked well for thirty years, and that they should feel extreme reluctance to overthrow the practice or declare its unconstitutionality."

As the court clearly held and declared that Circuit Courts had appellate jurisdiction, it would have been reasonable, and it would naturally have followed for it to have said that in the exercise of such jurisdiction, the case was to be tried upon errors shown to the court in the record, but nothing of the kind appears in said opinion.

It has been held that the word appellate limited the court to a review of errors appearing on the record. The definition of the word does not bear out this construction :

“It is the jurisdiction which a Supreme Court has to rehear causes which have been tried in inferior courts." Rouvier's Law Dictionary.

It is held by the respondent that a trial de novo would be the exercise of original jurisdiction. Bouvier says (law Dic.) “that original jurisdiction is that bestowed upon a tribunal in the first instance.” In the case of Jordan vs. Wallace, it was brought "in the first instance" in the Justice Court. I trial was had in said Justice Court; a judgment was therein entered; an appeal was taken to the Circuit Court, so that in “rehearing” provided by the statute the jurisdiction which was called into exercise in said Circuit Court was not that bestowed upon a tribunal in the first instance," but certainly was the exercise of jurisdiction to “rehear a case previously tried in an inferior court," which the authorities cited call appellate.

The system of trying cases anew in the Circuit Courts

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The State ex rel. v. Baker-Opinion of Court.

wlien brought up by appeal from Justice Courts, has worked well for the past seven years. To hold that the statute is unconstitutional and to require bills of exceptions to be made up in Justice Courts, would be practically to abolish the right of appeal from such tribunals.

Cockrell & Waker for Respondent.

THE CHIEF-JUSTICE delivered the opinion of the court.

VI. C. Jordan recovered a judgment before a Justice of the Peace against Alexander Wallace for one hundred doldollars, from which judgment Wallace appealed to the Circuit Court. Jordan, plaintiff, there moved to dismiss the appeal upon the ground that there was no record and assignment of errors filed in said court according to the law of appellate proceedings, and that said court could not hear said cause in any other manner than upon a record and assignment of the errors made by the court below. The motion was opposed by appellant, who demanded a trial de novo.

The court “decided that the statute which provided for the exercise of jurisdiction by this court in cases of appeals on the civil side from the court of a Justice of the Peace is unconstitutional, in that it provides for the exercise of original jurisdiction in such cases; and there being no method provided by law for the exercise of appellate jurisdiction by this court, the court declines to hear this cause, and the appeal is dismissed."

An alternative write of mandamus was issued requiring the Judge to reinstate the cause upon the docket and to try the cause de novo according to the rules of practice and the statutes, or show cause, &c.

Respondent demurs to the alternative writ upon the ground that the act of the Legislature in providing that

The State ex rel. v. Baker-Opinion of Court.

civil actions on appeal from Justices' courts should be tried anew was unconstitutional, in that it provides for the exercise of original jurisdiction in such cases; and also that the law authorizing appeals in civil cases “is contained in the provisions of a statute which is unconstitutional."

The Constitution confers jurisdiction in civil actions at law upon Justice of the Peace, where the amount or value involved does not exceed one hundred dollars. Section 15, Article 8.

Section 8 of the same Article says: “The Circuit Court shall have original jurisdiction in all cases at law in which the demand or the value of the property involved exceeds cne hundred dollars, * * and final appellate jurisdiction in all civil cases arising in the court of a Justice of the Peace, in which the amount or value of property involved is twenty-five dollars and upwards, * * and power to issue all writs proper and necessary to the complete exercise of their jurisdiction."

Section 62 of the act regulating proceedings in Justices' Courts, approved February 27, 1875. (Ch. 2040) provides that when an appeal is perfected the Justice shall transmit to the Clerk of the Circuit Court a certified copy of all the entries in his docket and all the papers filed in the case, "and thereupon the said appellate court shall proceed to hear the said cause, and may allow such amendments therein as may be just, and render such judgment as may be conformable to law and the justice of the case. The trial shall be by jury, if demanded by either party.” Sec. 1, Ch. 3268, approved February 11, 1881, says: “All appeals taken from a judgment of any Justice of the Peace shall be tried de novo."

A proper construction of these sections will determine this case.

The original jurisdiction of the Circuit Court in civil

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