Vandalia Whig and Illinois intelligencer. [volume] (Vandalia, Ill.) 1832-183?, 1833-05-22

with foes linn HproI6
SUPREME COURT
FEBRUARY, 1881
John Bowers. nlant;ff in error.l
Us. hrror 10 JACKSON
Clark Green. ORIGINAL plantif.\ Couhty'
Oninion of the court bv Mr. JUSTICE LOCKWOOD.
Green sued Bowers before Justice of the peace to
recover the penalty five dollars inflicted by the 18th
section of che act regulating mills and mers, pas
sed 9th February 1927 for taking more toll than is
allowed by the 18th section of said act Green re-
covered before the Justice and the cause was
ed by appeal to the circuit court where the judgement
was affirmed To reverse this judgement the cause
is brought into this court by writ of error.
A preliminary objection has been raised, whether
writ of error will lie in case where the recovery
under twenty dollars exclusive of COSTS and to sup
port this objection the case of Clark Ross, Breese
Rep. 26l has been cited If the decision of that
case was correctly made the objection well found
ed aud this cause ought to be dismissed for want of
jurisdiction in this court The ma kim, stare decics,
lis one of great Importance in the administration of
Justice and ought not to be departed from for slieh
or trivial causes Yet this rule has never been carried
so far as to preclude courts from investigating former
decisions when the question has not undergone re-
peated examination and settlement. Wherever the
conjunction off statute has been repeatedly given
the same way or when construction has been given
and acouiesced in for number of wears, it would be
manesty improner for a court to disturb questions
thus settled But the case of Clark VS. Ross is the
only case IN which this court has been called upon
to settle the right of parties TO bring rts of error to
this court and that decision has not it is understood
by the court given satisfaction to the bar. Under
these circumstances think it the duty of the court
to reverse that decision That decision is based on
the idea that wrts oeror are in their nature appeals
becatse the constitution only giyes this court appel
late jurisdictions EXCEPT in certain cases. and that
the legislature by limiting appeals to cases where the
Judgment exclusive of costs shoud amount to TWEEN
ty dollars had used the word appeas'' in its broad
est and constitutional sense and thereby had includ
ed wrts of error Were the court ri in giving this
construction TO the word ssappealsn9 At common
law the only mode of removing a cause from an in
ferior court of record to SUPERIOR court for reversal
was by writ of error and this writ is writ of right
which cannot be denied except in CAPITAL cases. To
obtain writ of error it is necessary to apply to the
clerk of the Supreme court and then it does not one
rate as STAY of execution unless an order is obtain
ed from Judge for that purpose From this state
ment it is obvious that considerable DELAY would in
teryene before writ of error could be obtained and
in the meantime execution be issued on the judg-
ment, and party against whom an erroneous judg-
ment had been given might be put to considerable
trouble and expense To remedy this evil it is fairly
presumable that the legislature gave the additional
remedy by appeal By taking an appeal which is
done when the Judgment rendered. the effect of the
Judgment is entirely suspended until the appeal is de-
cided From this view of the subject am satisfied
that the legislature in authorizing parties to take
sappeas' used that term as descriptive of the mode
and only intended to give more expeditous md less
expensive means of taking case from an inferior to
a superior court An appeal therefore. ought to be
considered as cumulative remedy, and consequently
any restriction upon the right to the remedy
not with propriety, be extended to other modes Of
redress provided by law This construction is forth
fed by the consideration thatby act passed Janua
ry 10, 1929, entitled, San act regulating the supreme
and circuit courts,' which act not to have been
noticed by the court in the former case, the remedy
by appeal and writ of error noticed as different
modes OF removing causes into this court.
Another consideration is entitled to great weight
in arriving at correct result this question, and
that is, that much injustice must necessarily result
from the decision in Clark VS.. Ross, if adhered to.
Many cases might be stated, where party would be
entirely deprived of all redress, when manifest nus-
tice has been done in the court below | will only
state to illustrate the great improperly of
sustaining the declsion OF Ctarf VS.. floss. brings
an action on a note Tor Slooo and the court below
by an decision reduces the debt to twenty
eo'ars' or oy such wrong decision verdict is gwen
ior 'ne oeendant NOW, IL the case oil CfarGVs floss
Is TO De deemed law A, III the case supposed, would
oe entreiy without remedy Can 1t be supposed
that me legislature intended any such injustice! and
ought the court to sustain declslon, unless compelled
by express legislative enactment which will produce
such results! The old and salutary rule of the COM
mon law that writ oil error is writ of right, and
cannot be denied except capital cases, ought not
10 De ooviated by implication and construction, and
parhculary when 1t is evident that the legislature