Atkinson v. Peoples' National Bank

| Me. | Mar 31, 1893

Emery, J.

At common law the usual writ of error (coram vobis) issued out of the writ office in chancery to the cour whose record in the particular case was to be examined, and commanded that court to send the record and process in the case with all things touching them, (and also to return the writ itself,). into some other court, usually the king’s bench, for examination and judgment. Thus the writ partook of a dual' nature. It operated as a writ of certiorari to the inferior court to send up its record and proceedings in the case, and it also operated as a commission to the superior court to inquire into and determine the legality of such record and proceedings.

After the return of the writ with the record and proceedings of the inferior court, into the superior court, the latter court issued its own writ of scire facias to the defendant in error. Upon the return of this writ of scire facias, the pleadings were made. The plaintiff assigned errors, and the defendant pleaded in millo est erratum, or some other appropriate plea.

If the return made upon the original writ of error did not include the entire, completed record and proceedings in the case, the superior court upon the suggestion of either party would issue a special writ in the nature of a writ of certiorari to the inferior court to send up the omitted portions. The superior court would also issue this special writ of its own motion in order to supply omissions and obtain enough to show a valid record. The pleadings did not properly begin until the entire, completed record had been obtained.

Under our system of procedure in Maine, the original writ of error and all the special writs of certiorari and also the special assignments of errors are dispensed with. The proceedings are begun by the writ of scire facias from the Supreme Judicial Court, in which writ are specified the errors relied upon. Instead of the writ of certiorari to the court to send up its'record and proceedings, the parties procure transcripts of the record and proceedings, and introduce them as evidence before the court which is to examine them. E. S., c. 102, § § 7 and 8. The court, however, has unquestionably the same right as at common law to insist upon a full transcript of the complete record and all the proceedings being produced, before hearing argument and rendering judgment. It may refuse to proceed until one party or the other produces such transcript.

In this case, the transcript is very fragmentary. The plaintiff offered only a transcript of an "abbreviated record,” such as is named in § 11 of chap. 79, E. S., together with a copy of the original process and tbe officer’s return thereon. The defendant offered only a copy of the docket entries and a copy of the pleas. We have repeatedly held that the court will not pronounce a judgment erroneous where only the abbreviated record permitted in § 11, ch. 79, R. S., is produced. Tyler v. Erskine, 78 Maine, 91; Lewiston Steam Mill Co. v. Merrill, 78 Maine, 107. That abbi’eviation may suffice as evidence of a judgment where it is only sought to prove its existence. Where,, however, it is sought to re-examine the proceedings and reverse-the judgment for error, there must be a full unabridged record, made up so that all the proceedings may be seen. Such a; record, according to Blackstone, comprises "the original writ,, and summons, all the pleadings, the declaration, view or oyerprayed, the imparlances, plea, replication, rejoinder, continuances and whatever other proceedings have been had; all entered verbatim on the roll; also the issue or demurrer and joinder therein.” 3 Bl. 317.

Either party can require the clerk of the court to extend the> record without abbreviation, and give him a transcript of suchi complete record.

If such a record were made and presented by transcript im this case, it may appear that the matters specified as errors in. the original process and the return thereon, were completely-waived and cured by the defendant’s appearance and pleading; directly in bar to the declaration without interposing any plea, in abatement or motion to dismiss. We think, therefore, we* should not pronounce judgment upon the record until the complete unabbreviated record is brought before us.

The plaintiff in error has, however, submitted his case upon the transcript and copies produced by him. These as above explained, do not necessarily show any erroi*; hence his writ of error should be dismissed.

Writ dismissed. Plaintiff nonsuit.

All concur.