Claggett v. Simes

31 N.H. 22 | Superior Court of New Hampshire | 1855

Eastman, J.

The controversy between these parties has been before this court on several occasions, and the facts in regard to the matter are quite familiar to us. They will be found in Claggett v. Simes, 5 Foster’s Rep. 402; and in Lane v. Lane, decided at the present term in this county.

In both of those proceedings, however, the object of the application was to set aside or vacate the judgment, which is now sought to be reversed by writ of error.

We are not now called upon to enter into any discussion of the alleged merits of the controversy, nor is it necessary for us to express any opinion in this case in regard to them. The judgment of the common pleas has not been vacated by any order of this court, and the repeated petitions to that effect which have been transferred to us, have been, upon full argument and consideration, denied. The judgment stands in due and regular form, and the record, as sent up by the common pleas upon this writ of error, appears to be perfect. It shows a judgment legally and formally drawn out, upon good and proper pleadings, and for a good cause of action. So far as an inspection of the record goes, there is nothing, either in law or in fact, tending to invalidate it.

But the plaintiff has assigned for error that this judgment, which purports to have been rendered and entered up as a judgment against him, was entered up by the clerk of the court of common pleas, without the authority or order of the court.

To this assignment the defendant in error has pleaded— first, in nullo est erratum, and, second, a release of errors; and the plaintiff has demurred.

It is a rule that on demurrer the court will consider the whole record, and give judgment to the party who, on the whole, appears to be entitled to it; for a demurrer, in whatever stage of the pleadings it is taken, reaches back in its effect through the whole record, and in general attaches ultimately upon the first substantial defect in the pleadings, on whichever side it may have occurred, and judgment will be given against that party who committed the first error in substance. LeBret v. Papillon, 4 East 502; 1 Saund, 285, n. 5; 2 Salk. 519; 5 Coke 29, a.; 1 Cow. 316; 3 Cow. 96; 1 Strange 303; Bac. Abr. Pleas, &c., N. 3; 8 Cow. 709; Gould’s Pl. ch. 9, § 36; 1 Saund. on Pld. and Ev. 499.

We have not considered the question whether the pleas of the defendant are objectionable on the ground of being double; nor whether the instrument set forth in the second plea can be construed as a release of errors. These questions we have passed over, because we regard the assignment of errors as bad and hopelessly incurable. We might ¡remark, however, that the lease, reciting the judgment itself, the issuing of execution and possession under it, and covenanting to surrender the premises at the end of the year without any further process of law, was a very singular instrument to be executed, if the plaintiff in error had ever intended in any way to avoid the judgment. The possession which he himself held would seem to acknowledge the full effect and power of this judgment. But in regard to the force of this instrument as a release of errors, or as an estoppel to this writ, we give no opinion. The character of the error assigned makes it unnecessary. That being fatally defective, the subsequent pleadings are in a measure immaterial.

The error assigned is that the judgment was entered up by the clerk without the authority or order of the court. This assignment is a clear impeachment of the record, and therefore bad; for it is well settled that nothing can be assigned for error which contradicts the record. 1 Roll. Abr. 758; Helbert v. Held, 1 Str. 684; 2 Ld. Raym. 1414; Bradburn v. Taylor, 1 Wils. 85; Hudson v. Banks, Cro. Jac. 28; Collingwood v. Lampton, 1 Salk. 262; 2 Saund. 101, q.; Patterson v. Cook, 8 Port. 66; Wetmore v. Plant, 5 Conn. Rep. 541; Cook v. Conway, 3 Dana 454; Hill v. West, 5 Yeate 385; 9 Wend. 125; 22 Wend. 369.

Bacon says that “ the records of the courts of justice being things of the greatest credit, cannot be questioned but by matters of equal notoriety with themselves; wherefore, though the matter assigned for error should be proved by witnesses of the best credit, yet the judges would not admit it.” 2 Bac. Abr. 219.

Also, “ If a writ of error be brought upon a judgment in an inferior court, and the record certified is of a court held before the mayor, bailiffs and burgesses of A. by custom, it cannot be assigned for error that there is no such custom, for this is contrary to the record, and even what the writ of error itself supposes, viz, that they have a court.” 2 Bac. Abr. 219; Cro. Jac. 359.

And again, “ In a writ of error upon a judgment in the palace court held coram Jacobo Duce Ormond, it cannot be assigned for error that the duke was not there, because that is contrary to the record, though, in fact, the court was held before his deputy, according to the patent.” 2 Bac. Abr. 219; Molins v. Wheatly, 1 Lev. 76.

In Moody v. Vreeland, 9 Wend. 125, it was decided that it cannot be assigned for error that a record of a judgment in the common pleas is signed by a judge not authorized by law to sign it; but that the remedy of the party in such a case is by motion. Savage, C. J., in delivering the opinion of the court, said : “ another question in this case is, whether error lies because the record was signed by a judge who had no authority to tax the costs or sign the record in the particular case, though he had that authority in certain specified cases. That it was irregular to have the record so signed is conceded, but it is contended that the irregularity is amendable, and that the party’s remedy is by motion. It is also said to be waived by the bringing of a writ of error; that unless there is a record of the judgment there is no fornidation for a writ of error; and that by bringing error the party admits there is a record. I think there is force in this objection. There either is or is not a record. If a paper purporting to be a record is placed upon the files of the court which is not a record, the proper remedy to get rid of it seems to be by motion. Nothing can be assigned for error which contradicts the record; a fortiori, it cannot be assigned for error that there is no record.”

And in Lovett v. Peel, 22 Wend. 369, it was held by the court of errors of New York, that a special assignment of errors that the issues joined were not tried, is bad, as impeaching the record.

So far as our researches have gone, the authorities upon this point are uniform. Nothing can be assigned for error which contradicts the record.

It is said in argument, however, that the defendant in error, by his plea of “ in nullo est erratum,” has admitted the fact as alleged in the assignment.

It is undoubtedly true that if an error in fact be well assigned, a plea of “ in nullo est erratum” is a confession of it; for if the defendant in error intends to dispute the truth of the assignment he should deny the fact and join issue upon it, and thus have the matter tried by a jury. Grell v. Richards, 1 Lev. 204; Okeover v. Overburgh, T. Raym. 231; 1 Roll. Abr. 763, K.; Dyer 65, b.; 2 Saund. 101, s.; 2 Bac. Abr. 218.

But if an error be assigned which is not assignable, or if it be ill assigned, in nullo est erratum is not a confession, but is taken only for a demurrer. Cole v. Green, 1 Lev. 211; Hayden v. Mynn, Cro. Jac. 521; Okeover v. Overburgh, T. Raym. 231; 2 Bac. Abr. 218; 1 Roll. Abr. 758; 2 Ld. Raym. 1415, note; Cross v. Tyer, Cro. Eliz. 665; Fitz G. 109, 110; 2 Saund. 101, s.; Moody v. Vreeland, 9 Wend. 125; Lovett v. Peel, 22 Wend. 369.

In the last case cited, Walworth, Chancellor, says: the assignment for error that no such verdict was given as stated in the record, no diminution being alleged, was not admitted by the joinder in error; it being an assignment against the record itself. And Verpla/nk, Senator, in giving an opinion upon the question before the court of errors, as founded upon authority, as well as expressing his own opinion that the position was wholly untenable, uses this language : “ If the assignment is bad, as impeaching the record, the defendant can avail himself of that objection under the general plea of in nullo est erratum. So if an error in fact that is not assignable be assigned, and in nullo est erratum is pleaded, it is no confession of it; as if it be assigned that the court was not sitting on the day when the judgment purported to have been given; because that is against the record, and in such case, in nullo est erratum is only a demurrer. But the error assigned was not assignable. A man' cannot allege diminution contrary to the record which is certified. Nothing can be assigned for error which contradicts the record. The record is the highest evidence of the facts, and it is not to be presumed to be false from a mere inference of pleading. If there had been any such error beyond some trivial matter of form, it could be impeached or corrected in the court below.” And the court of errors held in that case, that a special assignment of errors that the issues joined were not tried, is bad, as impeaching the record ; and that a plea of in nullo est erratum to such assignment operates as a demurrer, and not as a confession of the fact assigned as error.

The authorities cited by the counsel for the plaintiff in error will be found, upon examination, not to conflict with the views here expressed. They go no further than to show that it is for errors in fact well assigned that the plea of in nullo est erratum is a confession of the facts.

The error assigned by the plaintiff is a palpable contradiction of the record, as an inspection of it shows, and the plea,of in nullo est erratum is in no way a confession. The ■terms of the assignment itself, likewise, show that it is a contradiction of the record, for it speaks of “ the judgment which purports to have been rendered and entered up ” as having been entered by the clerk without authority. It is not, therefore, an error for which a writ of error will lie, but an irregularity; and it belongs to that class of defects which are amendable in the court below. The court in which the irregularity occurs will readily grant relief if the application is seasonably made ; and irregularities of this kind will always be corrected upon a proper case shown. This court have so said at this and at prior terms, in this very matter, between these parties. But the remedy of the party is by motion, and not by writ of error. If there has been any mistake in making up a record, the court, on application, will direct an amendment, and it can be altered or controlled in no other way. 3 Black. Com. 25; Dudley v. Butler, 10 N. H. Rep. 289; Moody v. Vreeland, 9 Wend. 125; Lovitt v. Peel, 22 Wend. 379; Ex parte Weston & a., 11 Mass. Rep. 417; Pierce v. Adams, 8 Mass. Rep. 383; Johnson v. Harvey, 4 Mass. Rep. 485.

According to these views the judgment of the court below must be affirmed.