Dawson v. Condy

The opinion of the Court was delivered by

The appeal, being secured by an. express provision of a statute,-instead of resting on the discretion either of the justice or the Common Pleas, is a legal right which can be-relinquished only by an express agreement. On an application to quash, by what kind of evidence is such agreement,to. be established ? Not,by parol; for it could not be put on the record; and' a superior Court, therefore, could not inquire whether it were sufficient to justify the judgment of the Court below. It is no. answer to-say, the1 inquiry may be oh depositions filed in the cause, and' that the evidence -may thus be subjected to the inspection of the superior Court. A Court of..Error cannot look beyond the record, .and nothing is more certain than that a paper does not become a part of the record, merely by being filed. But, admit that thir Judges of the superior Court might look at the depositions; are .they-to become triers of the facts? That .would require them to decide oh the credibility of the witnesses: a,matter about which they must necessarily be absolutely ignorant. Depositions can -be put on the record only by a,-bill of éxceptions, and even that, required the authority of an express- statute they can therefore be made the groundwork of a writ of error'in rio-óase where the bill of, exceptions does not lie. It is said- the Court may inquire'by parol evidence into the. grounds of a motion to quash a writ; and why not, to quash an appeal ? The difference is obvious. Every-Court necessarily has. a discretionary (controul over its own process; in .the .exércjse of which, its judgment is subject to the revision of no .tribunal *369whatever : the appeal is a matter of right, which, if denied by the Court .to which it is made, may be claimed in the Court of the last resort. I therefore ¡take the distinction to be this :—A Court may inquire by parol evidence, .as to any matter that is purely within its own discretion : but where the matter is the subject of a writ of error, it can consider of nothing which. is incapable of being made a part of the record, and as such the ground of an exception in the Court ahoye. The right of appeal, therefore, cannot be relinquished, except, by an agreement reduced to writing, and' made part of the proceedings, either before the justice, or in the Common Pleas'. Beside this^ the evidence on Which the motion was decided, was offered to add to the written agreement of reference before the justice ; and on that ground it should have been rejected; The judgment is reversed, and the record remitted to the Common ■ Pleas, with directions to reinstate the appeal.

Judgment reversed.