Cullen v. Lowery — 2 Del. 459

Majority

p. 459

JAMES CULLEN, d. b. vs. JUSTUS LOWERY, p. b.

Headnote

On a certiorari, the court will not in general look beyond the record, or hear any thing out of it; but there are exceptions to this rule, as where the justice has not fully set down the cause of action, pleas, &e.

So where the statement of the case leaves the jurisdiction doubtful.

Proof beyond the record only allowed on affidavit and motion.

Certiorari.

The record showed that it was an action by Lowery, as collector of school taxes against Cullen, for the amount of his school tax; but it did not set forth that the defendant had removed from the school district.

The exception was, that the justice had no jurisdiction to entertain a suit by the collector for a school tax, unless in case of the removal of the taxable from the district which ought, therefore, to appear by the record. In all other cases, the collector can levy and collect the tax in a summary way and without suit.

It was answered, that as the record showed a case which, under circumstances, was within the magistrate’s jurisdiction, the court would presume this matter in support of the jurisdiction; or would at least, allow proof to be taken in relation to it, as was done in Bai‘ ley vs. Luff, ante 292.

The case was argued by Bates for plaintiff below, and Frame for defendant below.

By the Court.

The action below was for a school tax, founded on a special act of assembly giving jurisdiction to justices of the peace, for such a cause of action, as against persons who have removed from the school district. The exception is to the jurisdiction in this particular case; and the appellant has alledged as a matter of fact, that he had not removed from the district. Evidence was admitted on this point, under the impression that such practice was warranted by the case of Luff and Bailey, which was a leading case in the Supreme Court. The principles announ

p. 460

ced in that case embrace the following: “as a general rule, on a certiorari, the court are to decide on the record, and can hear nothing out of it; they are to inspect the record, confine the justice to cases within his jurisdiction, and to the execution of his powers in the manner prescribed by law ; and not to inquire into and re-decide the merits of the casebut this general rule must be subject to modifications and exceptions. That one class of cases, on the principle of necessity, must be an exception, where the nature of the cause of action and the pleas and defence are not set down, or made a part of the record below.

Bates, for plaintiff.

Frame, for defendant

In the present case, the party excepting first tendered an issue of fact, dehors the record, as to his removal from the district; and on the testimony being taken, this is found to be against him. But his counsel now takes the ground that the record must, in itself, show the jurisdiction; and that no evidence can be received by the court to sustain it. We have, therefore, to decide this question, and we do, in accordance with the case cited, determine that this evidence was properly taken on the allegation of the exceptant against the jurisdiction. It falls within the class where the nature of the cause of action is not fully set down; and where neither party ought to be precluded from showing how the fact is, especially in reference to jurisdiction. Having properly admitted evidence on this point, it has sustained the jurisdiction.

If the case stood on the record alone, we should hesitate to reverse for want of jurisdiction. The record shows that the suit was for a school tax. There is one case, and but one, in which the justice has such jurisdiction, and perhaps we ought to presume that it was such a case, rather than to presume the contrary; but evidence on this point having been taken in accordance with the practice of the late Supreme Court, we decide upon that evidence and not upon any presumption.

In all cases, however, where it is sought to introduce proof, out of the record on certiorari, the foundation must be laid by affidavit of the truth of the facts stated, and motion to the court. The taking of such evidence is by no means of course, and the practice must be strictly guarded. Judgment affirmed.