Lead Opinion
This case is brought here by writ of error, to correct
The defendant claimed title to the land under a sheriff’s deed, given on a sale 'of the premises under an execution issued on a judgment obtained by defendant and his wife against Reuben Abbott, on the 6th of December, 1841, in the Circuit Court of Calhoun county. To prove the judgment, he offered in evidence the following entry on the journal of the circuit court, with the files and entries in the case:
'■’■Reuben Emery and Harriet L. Emery v. Reuben Abbott. Dec. 6th, 1841. '
“On hearing counsel in this cause, ordered, on motion of George Woodruff, plffs.’ att’y, judgment for the plffs. on demurrer, and that it be referred to the cleric to compute the amount due on the bond mentioned in plaintiffs’ declaration, and the cleric having computed the amount due by the condition of said bond, at $800, the penalty thereof, to be discharged on the payment of six hundred twenty-four dollars and eleven cents, with costs to be taxed (624.11).”
Also a transcript of a judgment, in this court, in the same cause, affirming the judgment of the circuit court
Admitting the journal entry of the circuit, with the files and entries in the case, did not prove a final judgment, there was proof of such judgment in the certified copy of the proceedings in this court, where the judgment was affirmed, which shows a formal record of the judgment attached to the writ of error removing the cause here.
By the Revised Statutes of 1838, and previous thereto, it was the duty of the clerk of the circuit court to make, in vacation, a complete record in a book, of all cases finally determined, and at the next term to present such book to the judge, who was required to compare the record so made by the clerk, and, if found to be correct, to sign it. — Rev. Stat. 1838, p. 410, §10; Laws of Mich. 1827, p, 124, § 24. In 1839, judgment records were dispensed with in cases settled by the parties before final judgment.— 8. L. 1839, p. 223, §21. By the fee bill of 1840 (8. L. 1840, p. 183), the clerk was to have ten cents a folio for making a complete record in each case, when required to make it by a party, and not otherwise. And by the Revision of 1846, these several statutory provisions were repealed, and we now have no judgment record, properly speaking. The journal entries, files, and office entries, are the only records we have, since that Revision, of judgments in our courts of record. I mention these changes in the law to account for a formal record, signed by the clerk and judge of the circuit court, being in this court, while no record is to be found in the circuit court. Judgment was rendered in the circuit on the 6th of December, 1841, after the act passed in 1840, which act was virtually a repeal of the law requiring judgment records, except when one of the parties required a - record to be made. That one
On the argument it was insisted by defendants in error, that the judgment of the circuit court should be affirmed without hearing the plaintiff in error, although in court, urging a right to be heard, and alleging error in the record, as the same questions had been decided in the court, in this same suit, against plaintiff in error, on questions reserved by the circuit judge on a former trial for the opinion of this court. When this is the case, the court will not, I think, be very likely to hear a second argument without some satisfactory reason for doing so, but will be governed by circumstances and a regard to the rights of the parties.
The questions before us are entirely different from the questions before the court in Whitwell and Hoover v. Emery, 3 Mich. 84. But one of the two questions decided in that case could possibly be made on the bill of exceptions before us, and that is one of no importance to either party, in the present aspect of the case. I allude to the amendment made on the first trial, by the circuit judge, of the journal entry- of the 6th December, 1841. The judge permitted the entry to be amended, by inserting the foEowing words between the words “at,” and “$800,” namely, “six hundred and twenty-four dollars and eleven cents, ordered final judgment for,” so that the entry would read “the clerk having computed the amount due on said bond at six hundred and twenty-four dollars and eleven cents, ordered final judgment for $800j the penalty thereof, to be discharged on the payment of,” &c. If it was necessary to decide whether such an amendment could be made, I should not, by reason of the decision in 3 Mich., feel warranted in refusing to hear counsel upon it, as we
There is a clerical error in the record of final judgment sent to this court on the former writ of error, in stating the judgment to be for the amount the clerk found to be due, instead of the penal sum of the bond, to be discharged on the payment of that amount. The error, however, is one so manifest from an inspection of the whole record, that it may not' only be amended at any time without notice, but the same force and effect may be given to the record as if it had been amended. The authorities are very full and clear on these points. Instead of naming them, I refer to the brief of counsel for plaintiff in error, where the cases may be found arranged under different heads.
The court, therefore, erred in rejecting the certified transcript of the record of this court; and as the further evidence offered was doubtless rejected on the supposition there was no proof of a judgment, I deem it unnecessary to notice the other assignments of error.
The judgment should be reversed, with costs.
Concurrence Opinion
I agree substantially in the opinion of my brother Manning in this case, though I do not rest my opinion so much upon the complete record returned to the Supreme Court in the case of Abbott v. Emery, or upon the affirmance of the judgment in that court. I come to the same result from the files and entries in that cause in the court below.
If, on the trial in the court below of the cause now under consideration, nothing had been offered in evidence
Judgment on demurrer, in such a case, is not like a judgment by default: the latter is the act of the party, and needs confirmation by the court; the former is the judgment of the court upon facts admitted by the pleadings; it is the deliberate judgment of the court itself. It is true, judgment against a defendant on demurrer, in an action for damages, is not practically final; as a computation or assessment must be made, to ascertain the precise amount of the judgment. But in this action of debt on the penalty of the bond, the judgment for the plaintiff for the debt, must be for the penalty of the bond, though the sum due were but one dollar; the assessment by the clerk could not alter it; it was not, therefore, necessary to precede the final judgment, as in a ease for damages, or even in other cases of debt; but only became essential, if at all, to ascertain the amount to be collected on the execution, in discharge of the judgment for the debt. The reference to the clerk, therefore, furnishes no inference that the judgment was not intended to be final.
The clerk, in making the entry of judgment on the demurrer, and the reference, made a palpable blunder in stating the amount due by the condition of the bond at 'eight hundred dollars; yet he states it as the penalty, and finds the sum on the payment of which it is to be discharged, to be six hundred and twenty-four dollars and eleven cents, which is evidently the sum really computed to be due. No reference could authorize him to determine the penalty; that was fixed by the bond.
It is not only evident that these are mere clerical errors, but a reference to the pleadings and files in the case, and a fair construction of the whole, make it equally evident what should have been inserted in the place of these errors. We can therefore discover what those entries should have been, ■and the true intent and meaning of the whole record, with ■as much certainty as if those errors had not occurred. We can not fail to see that a final judgment was intended, and should have been entered, for eight hundred dollars debt and the costs of suit, which was intended to be discharged on payment of six hundred and twenty-four dollars and eleven cents (the amount due by the condition) with those costs — the precise amendment made by the circuit judge on a former trial of the present cause, and which he doubtless made from an inspection of the same files and entries. I can hot doubt it was entirely competent so to amend the record. But though such amendment may be made when the true intent appears from the construction, the actual amendment is not necessary, nor is it often in fact made; but the record will be treated as amended, or, rather, as if no such error appeared. A record must, like all other writings, always be subject to construction, for the purpose of ascertaining its intent, and its effect. In fact, the record is what its fair construction makes it. The question of amendment, in such a case, is therefore practically resolved into a question of construction; and this question may and must arise, whenever and wherever the record is brought in question; and the period of time which may have intervened is wholly imma
If the nature of the error, and the appropriate amendment, depend upon matters not apparent on its face, but which require to be shown by evidence aliunde, notice should be given to the parties to be affected; and they should have an opportunity to be heard, before the amendment is made.
Campbell J. i
This case, as now presented, differs from that presented to the late Supreme Court in this important particular :- That the amendment then brought in question was not accompanied by any thing to amend by, and the court could not sustain it in the absence of a sufficient showing; whereas, in the present case, the whole record is before us. It appears from this that a declaration was filed upon a money bond in the sum of eight hundred dollars, and a single special plea interposed, whereby no issue was rajsed upon the making of the bond or the amount due, and the only question raised was one collateral to the merits. Upon a demurrer to this plea, judgment was given for the plaintiffs, and an order entered giving such judgment, and proceeding to recite a reference to the clerk, but ‘ showing that some clerical omission had taken place, whereby something else failed to be stated. An execution was issued for the penalty of the bond as the debt recovered, and the sale was had under it. The sustaining of the demurrer to such a plea as this was, unquestionably entitled the plaintiff to a judgment for eight hundred dollars, and perhaps was, in itself, a sufficient judgment, inasmuch as there
Dissenting Opinion
dissenting:
This court held when this case was formerly before it,, that there was nothing in the journal <entry of the circuit court from which it could be inferred that a final judgment was ever rendered therein. — See 3 Mich. 86. There was before us the journal entry, from which it appeared that a judgment had been rendered upon demurrer, and a reference ordered to the clerk to compute the amount due upon the condition of the bond, and an entry of such computation.. From all this it was manifest that the court below did not intend that such judgment should be final, but interlocutory;, and whether that court had power to render a final judg-. ment at that stage of the cause, or not, so long as the intention not to do so was obvious we had not the power to, transform it into a final judgment. But under the statutes of 1838, this reference was not only proper, but necessary-before final judgment. — See JR. 8. 1838, p. 460.
That a clerical error may be amended at any time, I do. not doubt, nor did this court then determine. That question, was not before us, and the judgment was based upon the fact that the journal did not show that a final judgment was ever rendered, or was ever intended to be rendered, by-the court below. The journal clearly enough showed that it, might have been, but not that it ever was. This was not regarded as a clerical error in the entry of a judgment, but as a want of evidence of judicial action. There was, in short,, an absence of a judgment- — nothing to be amended.
But we have now before us a return to the Supreme Court, in 1841, showing the pleadings and proceedings in this case, and also what purports to be a judgment of the circuit court. To my mind it is a little remarkable, not to, say suspicious, that on a trial in the same court in which the record is supposed to remain, if one was ever made, the plaintiff in error has been compelled to resort to this return, to show that there, ever was a judgment rendered by the-court below.
But it appears that the judgment, as certified by the clerk, is erroneous; it is not a judgment in debt for the penalty, but for the amount due by the condition of the bond. From this I also infer that it is the clerk’s judgment, and not the court’s. The same error crept into the judgment of the Supreme Court, but this latter was evidently rendered upon motion, and not after an argument, as the award of damages and double costs clearly shows.
Here is, therefore, evidence of two erroneous judgments ■ — one of which is of another tribunal from that having original jurisdiction of the cause; the other of which I can not believe to have been any thing but a clerk’s formal return, and not a copy of a record, and consequently no evidence of a judgment — offered to show that the circuit court determined to, and did, render a final judgment in the cause, and that for the penalty of the bond, and thus to correct an error claimed to exist upon the journal of that court, which is the vital one of an entire want of a judgment. We are indeed a court for the correction of errors if we make out of all this confusion a good judgment.
I adhere to the former decision of this court, notwithstanding the additional evidence now before us that there is no evidence that the circuit court ever rendered a final judgment in this cause, and consequently there is no error in its journal which can be corrected.
Judgment reversed.