Canton Co. v. Philbin

Upon further reflection I adhere to the opinion expressed when this question was first argued during the present term of court. This court is not a court of review, and it has no proceeding appropriate for the mere correction of intermediate error below. It can remedy such an error, but it can do so only by means of a trial de novo. It cannot remand a case with instructions to proceed aright from the point of error. It proceeds not by way of continuation of proceedings before the magistrate, for revision and correction, but in substitution for all such proceedings, and without reference to them. Its only action is by judgment finally disposing of the case, either on the merits or on some defect which defeats jurisdiction from the beginning.

Obviously, I think, a dismissal of the case ab initio is inappropriate for the *237correction of error in refusing removal to another magistrate, after a valid institution of suit and service of process upon the defendant. The plaintiff, despite that error, is still entitled to the advantages of the service, and .jurisdiction over the defendant. And those advantages will often be valuable. The period of limitations may expire before another service can be had, and the defendant may meanwhile move out of reach of process, or, warned by the first suit, may build up various obstructions against a second.

In my opinion, the defendant, who finds his application for removal refused, has a choice of two remedial steps open t.o him. It may be said’ that it is, ultimately, a choice of two courts for the same relief. If he desires a trial before the Peoi>le’s Court, he may by the aid of a writ of mandamus compel the transfer of the papers to that court for trial there. Or he. may have the case sent here for the trial. Given a valid service in a case within a magistrate’s jurisdiction, then the trial de novo is this court’s cure-all for errors below.

The motion in this case will be overruled. And the opinion will explain similar action in several other cases in which the same question has been presented.