Tinges v. Moale

Weisel, J., delivered the opinion of this Court. The appellant was plaintiff below. He sued the appellee at law for services, in the shape of commissions, as a real estate broker. A case was docketed by consent, and upon appearance and issues of fact was, with the consent of the parties, submitted to the determination of the Court, and judgment was rendered for the defendant.

With a view to bring the cause to this Court on appeal, the proof was embodied in a bill of exceptions, concluding with a motion by the plaintiff’s counsel to the Court “to decide that the plaintiff was entitled to recover, inasmuch as it appeared from the evidence that the plaintiff was employed by the defendant to procure a purchaser for his dwelling house, and in the course of this employment he called the attention of Mr. Reinecker (the purchaser) to the house, showed him the property and secured an offer from him, •which the defendant subsequently took, and that the negó - tiation between the plaintiff and the said purchaser was the foundation on which the sale made by the purchaser rested.” The Court refused so to decide, but proceeded, in the form of an opinion, to state the facts as shown by the proof, and to apply to them certain principles of law'and adjudicated cases; upon the consideration of which, judgment was pronounced for the defendant. To the refusal to decide agreeably to the plaintiff’s motion, and to the judgment as given, the exception -was taken by the plaintiff. The opinion of the Court, incorporated in the bill of exceptions, thus becomes a part of the record before us, and it sets forth the facts as either found by the Court or proved upon the trial» with its view of the law as applicable thereto. The appellee filed a motion to dismiss this appeal, which was heard in connexion with the argument on the points ⁴⁸⁴ presented by the briefs.

The motion to dismiss toolc the ground, that inasmuch as this cause was heard and decided below since thq^Constitution of 1864 went into operation, and that by the^th sec. of Art. 4, of said Constitution, the parties to any cause might submit the same to the Court for determination without the aid of a jury, the jurisdiction of the Court, in such cases, was limited and restricted, and as no appeal was specially given, none therefore lay. It was also contended, in support of the motion, that the record does not disclose what question of law was raised or made in, and decided by, the Court below; and that, therefore, this Court has nothing before it for its review. See 1 Code, Art. 5, seo. 12. s The provision of the Constitution authorising the parties to a suit at law to submit facts to the trial and determination of the Court, without the aid of a jury, cannot be regarded as restricting the jurisdiction of the Court, or as conferring upon it a special jurisdiction. There is no superadded jurisdiction of a limited or restricted character to the general jurisdiction of the Court, but a mere authorised change, in certain cases optional with the parties, in the mode of trying facts, already a part of its general jurisdiction.

But this change does not enlarge the subject matter of appeals. With the facts as found by the Court below, upon such a submission, this Court has no more to do upon appeal than if they had been found by the jury. It is only upon the law arising upon facts, as