Emery v. Brann

67 Me. 39 | Me. | 1877

Libbey, J.

The petitioners set out in their petition certain alleged irregularities and errors in the proceedings of the justices of the peace and of the quorum, in taking, the disclosure of the debtor, and administering to him the oath prescribed in c. 113, B. S. But it is not alleged in the petition that the irregularities and errors specified appear by the record of the justices, which they seek to have quashed. The petition should contain such an allegation. The respondent appeared and answered, and presented a copy of the record of the proceedings of the justices, duly certified, which is made a part of the case. We shall therefore consider the case as if the petition contained the proper allegations. The only alleged error appearing in the record, to which the attention of the court is called. by the counsel for the petitioners, in their argument, is that it does not appear by the citation that the debt- or was arrested and gave bond in the county of Somerset, and therefore the justices had no jurisdiction. This alleged error is not set out in the petition. The citation alleges that the debtor was arrested by a deputy sheriff, under the sheriff of the county of Somerset, and the petition contains the same allegation. The presumption is that the arrest was made by the officer within his jurisdiction. If, however, the debtor was not arrested in that county, the proceedings were unauthorized and void, and will furnish no defense to an action on his bond.

We have carefully examined the record of the proceedings before the justices, certified by them, and discover no error apparent upon the record. ■ ■

But the petitioners claim the right to introduce evidence dehors the record, “to complete and impeach the record and to show fraud, and that injustice was done,” and for these purposes they offered the original papers showing the proceedings before the magistrates, and.proof of their identity, and also the deposition of S. J. Walton, one of the justices, who acted but did not sign the record. By the report, “If the original paper or other testimony are competent to be introduced to show error in the record or proceedings, or fraud, or that injustice was done, the case is to .stand for trial, otherwise judgment for respondents.”

In Pike v. Herriman, 39 Maine, 52, the petitioner offered to prove certain facts dehors the record ; but the evidence was held inadmissible. The court' say, “A writ of certiorari can present only a record of their proceedings ; no testimony can be received from the petitioner to affect the record, or to prove other facts not appearing in itciting Commonwealth v. Bluehill Turnpike Corp., 5 Mass. 420. The same rule was affirmed in Ross v. Ellsworth, 49 Maine, 417. See also Rutland v. County Commissioners, 20 Pick. 71.

Among the papers offered as original papers, the only one not contained, in substance, in the record, and which tends to contradict it is a paper purporting to be “Interrogatory 239. IIow did you lose the $600 or $700 to which you refer in your answer to interrogatory 233 ?” “The above inquiry or interrogatory I put into this examination and desire that the debtor may be permitted and required to answer.” . . ... This is signed by the attorney for the creditors, but there is nothing upon it showing that it was presented to the justices before the examination was closed, and ruled upon by them. By the record it appears that no such question was put to the debtor by the attorney for the creditors. The evidence offered is not admissible to show error in the record. Nor is it admissible to prove fraud. Upon this point it is sufficient to say that the petition alleges no fraud in the record. If there was fraud in the proceedings a writ of certiorari is not the proper remedy to correct it. Nor is the evidence admissible to show that injustice was done by the justices, for the reasons stated in the cases above cited.

In Dow v. True, 19 Maine, 46, and Little v. Cochran, 24 Maine, 509, cited and relied upon by the counsel for the petitioners, the errors complained of appeared by the record of the proceedings.

Writ denied. Costs for respondents.

A ppleton, C. J., Dickerson, Barrows, Danforth and Yibgin, JJ., concurred.