Ecker v. First National Bank

Alvey, C. J., delivered the opinion of the Court. This case is brought into this Court upon assignment of error in the proceedings of the Court below, under Rule 1, respecting appeals. At the common law, the writ of error lies where a party is aggrieved by any error in the foundation, proceeding, judgment or execution of a suit, in a Court of record (Co. Litt., 288, b); but it only reaches errors or defects in substance, that are not aided, amendable, or cured at common law, or by some of the statutes of amendments or jeofails. 2 Tidd’s Pra., 1136. In the case of Speak vs. Sheppard, 6 H. & J., 81 , it was held, that upon writ of error, the Appellate Court was bound to examine the entire record, and to reverse the judgment, as was done in that case, if there was error found to exist in any part of the proceedings, although the Court below were right, in the rulings, or opinions given by them, upon all the points or questions upon which they were asked to decide.

In such state of the law, and the practice under it, it is not difficult to perceive how liable a defendant in error was to be taken by surprise, and how difficult it was to maintain in the Appellate Court the judgments of the Courts below. The whole proceedings being subject to scrutiny in the Appellate Court, the best considered judgments were constantly liable to be reversed, for some error or defect in the proceedings, in ,no manner affecting the merits of the cause, and to which the attention of the Court below had, perhaps, never been called. It has been generally understood that it was the decision of the case of Speak vs. Sheppard, ⁵²² supra, that gave rise to the passage of the Act of 1825, ch. 117, to remedy this defect in the law. That decision, though made in 1823, was not published until 1825, just before the meeting of the Legislature of the December Session of that year.

The Act of the December Session, 1825, provided, “ that the Court of Appeals shall not reverse any judgment, on any point or question, which shall not appear to have been presented to the County Court, and upon which that Court may have rendered judgment.” As will be observed, the statute required that it should affirmatively appear to the Appellate Court, that the point or question upon which the judgment below was sought to be reversed, had been distinctly and directly presented to the trial Court, and upon which that Court had decided. And such was the plain construction as held by the Court of Appeals, in Sasscer vs. Walker, 5 G. & J., 103 , and Graham vs. Harris, et al., id., 489, 496, and in many subsequent cases. This provision of the Act of 1825 has been incorporated in the Code, Art. 5, sec. 12, in terms somewhat different from those employed in the original Act, hut with no substantial change of sense or meaning. The section of the Code declares that “ The Court of Appeals shall in no case decide any point or question which does not appear by the record to have been raised or made in and decided by the Court below.” And in the fourth Eule respecting appeals, made by the Judges of this Court, in pursuance of the provision of the Constitution, the substance of the section of the Code, just referred to, is embraced in these terms: “ In no case shall the Court of Appeals decide any point or question which does not plainly appear by the. record to have been tried and decided by the Court below.” It was in view of this statutory restriction, and