Bowes v. Isaacs ex rel. Smith

33 Md. 535 | Md. | 1871

Lead Opinion

Miller, J.,

delivered the opinion of the Court.

The first appeal in this case is from the judgment o\rer-ruling the appellant’s motion to strike out the supersedeas.

The record shoAA's that the appellees, Isaacs and Kahn, recovered a judgment on the 7th of Jan’y, 1869, in the Superior Court, against Judson H. Smith, Avhich, as the docket entries therein state, Avas superseded by a supersedeas, filed on the 15th of Jan’y, 1869, with the appellant and Andrew B. "Wise, “sureties, due 15th July, 1869.” The form of the supersedeas as it now appears in the record shows that the sureties on the 15th of January, 1869, appeared before the clerk of the Superior Court at his office in the court-house, and confessed judgment in the usual way to be levied of their goods, chattels, lands or tenements in case the said Smith did not pay the said original judgment, “on the 1th day of July, next,” and it is signed by the sureties and attested as taken and subscribed before the clerk. The chief ground on which the appellant relies is that in the form of the supersedeas as it stood at the time and prior to making his motion, it was expressed that the confessed judgment should be executed “ on the 7th of June, next,” and that the word “June” has since and without proper authority been altered to “July.” The motion appears to have been heard on affidavits filed on the part of the appellant and on the statement of the clerk made at the time of hearing, and the Judge in his opinion, says: “ It appears by the evidence and by the admission of facts that the superseding defendants appeared before the clerk and were informed that the supersedeas would be for six months from the date of superseding the same, and the usual terms of the confession of judgment as prescribed by the Code were repeated to them in which the dates were correctly stated, and they signed the blank form as is customarily done at the clerk’s desk, he making the correct docket entry at the time. But in filling up the blank, signed by them, he inadvertently wrote June instead of July, and on discovering his mistake changed the last two letters ne to ly,” and being of opinion the clerk had the right to correct his mere clerical errors so as to make the record conform to the truth, he overruled the motion.

"With every disposition to sustain if possible this action of the Court below, meeting as it apparently does the justice of this particular case, we can find no warrant in law for so doing. By the Code, Article 18, section 23, it is provided that the clerks of the Circuit Courts of the several counties, of the Superior Court and Court of Common Pleas of Baltimore city, “ shall have the power and jurisdiction to take supersedeas of judgments and decrees in their respective Courts, as a justice of the peace has by law, and the supersedeas so taken shall have the same effect as if taken by a justice of the peace; and every security in a supersedeas of a judgment rendered in the respective Courts, and superseded before the clerks of said Courts shall sign the same, and if they cannot write, make their marks, to be attested by the clerk; and the several clerks shall be entitled to a fee of twenty-five cents for each supersedeas.” The mode in which a justice of the peace may take supersedeas of such judgments, is prescribed by the Code, Article 51, section 45, where the form of confession is set out, (which however by section 49, need not be followed precisely, provided substance and meaning are preserved,) and this confession shall be signed by the justice before whom the same is made and forthwith returned to the clerk of the Court in which the judgment was rendered who shall record the same. The substantial requirement of Article 18, section 23, is that the supersedeas shall be signed by each security at the time of his confession, in order that the extent and nature of the obligation into which he then enters may bo evidenced by the written document and his signature thereto. This when filed in Court operates a stay of execution on the original judgment and is itself a judgment on which execution may issue under the Court’s order and authority. But in taking the supersedeas and in requiring it to be signed and approving of the sufficiency of the sureties, (Code, Article 18, section 24,) the clerk does not act as clerk of the Court in which the original judgment was obtained or ^lnder the eye and authority, and as the band thereof, but by virtue of a special power and authority conferred on him by law to be exercised at any time in or out of Court, and in or out of term time. Over his omissions or mistakes, when thus acting, the Court has no supervisory or discretionary power of correction as over entries made by him in the regular discharge of his duty as clerk, and where he merely acts as the hand or amanuensis of the Court; and 'hence cases affirming the well settled power of Courts to correct clerical errors in their own entries, writs or other proceedings, can have no application to this case. The law requires the clerk in taking a supersedeas to proceed in the same way as a justice of the peace was required to act in like cases, before this section 23 of Article 18, became a part of the Code, (as it for the first time did, in its present form, by the Act of 1860, chapter 132,) save that he should see that each security signed the same at the time it was taken. If it had been required by section 45 of Article 51, that the supersedeas should be signed by each security and the justice had returned to the clerk a form signed in blank or with erroneous dates, it would scarcely admit of argument that the Court Avould have no’power to order or. allow the justice afterwards to fill up or correct the same according to his recollection of what took place at the .time it was taken, or that the justice would have any authority to do so on his own motion; and if not, there is no reason why such action by a clerk in case of a supersedeas taken by him should be treated with more favor.

The substantial requirements of the law would be disregarded by allowing a supersedeas to be first signed in blank, and afterwards filled up, and then mistakes of essential dates corrected by the mere recollection of the clerk. The statute, by requiring the form of confession to be signed by the securities, must have intended to prevent the establishment or continuance of a practice so loose and dangerous as this, and no such practice, if any such exists, can receive our sanction. The very case before us is an instance of how little reliance can be placed on recollection, and affords an illustration of the wisdom of the law in requiring the confession to be complete when signed. It is conceded the case comes within the first branch of section 47, Article 51, which requires the six months stay to be computed from the date of the supersedeas, and yet, after the correction now made, which the clerk supposed covered all errors, there is still a fatal defect in the date of the 7th instead of the 15th of July, on which latter day only would the six months from the date of the supersedeas expire. We are clearly of opinion, upon the facts stated by the learned judge in his opinion, that this supersedeas was not taken in conformity with law, and should, therefore, have been stricken out on the appellant’s motion. The path of duty and mode of procedure is so plainly pointed out by the law, that there can be little excuse for erring therein. The clerk must first be satisfied of the sufficiency of the superseders as provided in Article 18, section 24, and then fill up with the proper dates and amounts, and names of parties, the blank form of confession prescribed by the Code, Article 51, section 45, or one similar in substance and meaning, and read it over to the parties, who, if they consent thereto, must then sign it, or, if they cannot write, make their mark, attested by himself. This is a very simple procedure, and when done, the supersedeas is' perfected to operate for the purpose for which the law designed it, and it cannot afterwards be mutilated or corrected out of the presence, and without the assent of the parties who signed, either by the clerk or any one else. Mistakes, if any there be therein, must be corrected, if at all, on application to the proper forum, and in the proper mode, by a bill in equity, and not by motion to the Court as for the correction of clerical errors made by its own officer in its own proceedings. The judgment on this appeal must be reversed.

(Decided 26th January, 1871.)

Judgment reversed.

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Dissenting Opinion

Maulsby, J.,

dissented.

The second appeal must be dismissed. It purports to have been taken from a refusal of the Court after the motion to strike out had been decided, to take any action on a petition of the appellant asking the Judge to certify to this Court, as part of the record in the preceding appeal, a certain affidavit of his counsel made some time after the motion had been decided, and also from the refusal of the Court to certify to us one of its rules. We are utterly at a loss to perceive how an appeal can be held to lie from this action of the Court. Wc have nothing to do, as affecting that judgment, with what 'Occurred,after the judgment overruling the motion was pronounced. In deciding that appeal, we are confined to the record of what took place up to the time of the judgment appealed from. But even if the matter were before us for review, there can be no doubt of the entire propriety of the action of the Judge in the premises as explained in his second opinion.

Appeal dismissed.

(Decided 26th January, 1871.)