21 Vt. 535 | Vt. | 1849
The opinion of the court was delivered by
Justice’s courts have always been regarded as courts of record in this state, and the question has several times arisen, — what shall be considered a sufficient record of a justice’s judgment 1 The decisions upon the question appear at first view to be conflicting. In Story v. Kimball, 6 Vt. 544, and in a case there cited, it was held to be sufficient, if the entries of the magistrate upon the original files and papers in the case contained satisfactory evidence, that the alleged judgment was in fact rendered. It was subsequently held, that such entries did not constitute a record, but were only minutes, from which to make the record; and that files and original papers were not admissible evidence to make out a record. Wright v. Fletcher, 12 Vt. 431. Strong v. Bradley, 13 Vt. 9. Nye v. Kellam, 18 Vt. 594.
This seeming inconsistency may be substantially reconciled, by recurring to the facts, and circumstances by which the different decisions were induced. In the three cases last cited it appeared, that the magistrates were still living, and, consequently, that records of their judgments might be made in conformity to the statute. The court, therefore, required the production of such a record, as would be sufficient, when made in a book of records. And by such a record it should, of course, appear, whether the parties, and which of them, if not both, attended before the justice, and whether an
It should be borne in mind, that the duty of recording their judicial proceedings in books, to be kept for that purpose, was first enjoined upon justices of the peace by the statute of 1821. Slade’s Stat. 304. Before that time they merely entered their proceedings and judgments upon the original files and papers. Such entries constituted their records, except when some occasion required a distinct record to be drawn up in a more extended and formal manner. And this kind of record, consisting of original minutes by the magistrate, which was commonly his only record prior to the statute referred to, must still of necessity be received as a record, when no other can be had. The statute requiring that additional and distinct records shall be made, and implying that they shall possess all the ordinary requisites, is properly held to be positive and peremptory, so long as the justice can comply with it, but must be deemed as only directory, when compliance has become impossible. And the question will then be, not whether the minutes of the justice would constitute a sufficient separate record when entered in a book of records, but whether, in connection with the files and papers on which they were entered, they furnish sufficient express or presumptive evidence of a valid judgment. If so, it must be held, under the circumstances, that a record is shown.
We are satisfied, that the county court should have found sufficient evidence in the papers before them, to prove the judgment declared on; in other words, to make out the record, the existence of which was in issue. It is true, that an appearance of one or both of the parties at the time and place appointed in the writ, as also the plaintiff’s appearance and the defendant’s non-appearance at the time to which the suit was continued, have to be assumed by presumption. But the presumption is entirely consistent with the
The want of actual notice to the defendant, of the pendency of the suit, would not render the judgment void; as in that case his rights were otherwise saved and protected by statutory provisions.
Judgment of county court reversed, and judgment, that there is such a record.
