2 N.D. 184 | N.D. | 1891
Lead Opinion
The opinion of the court was delivered by
The facts giving rise to this case, briefly stated, are as follows: One A. W. Kuhn was justice of the peace in Norman township, Cass county. An action, properly brought on for trial before said justice and a jury on January 3, 1S90, at a point in said township agreed upon by the parties thereto, and in which the petitioner in this case was one of the defendants, resulted in a judgment against the defendants. On March 22,1890, the petitioner obtained from the judge of the district court of Cass county a writ of certiorari to review said
The points above specified were well taken, and the motion should have been sustained. To sustain the position that the writ of certiorari may be directed to an ex-officer after he, has parted with the record respondent relies upon Harris v. Whitney, 6 How. Pr. 175, and Conover v. Devlin, 15 How. Pr. 470. The cases do not go far enough. There is no allusion to the real point here. Those cases do hold that the writ may run to an ex-officer, but there is no suggestion that such ex-officer was not in each of those cases in possession of the record to be reviewed. On the contrary, in Conover v. Devlin, the writ directed the ex-officer “ to certify to this court the proceedings had before him in this matter and the record thereof ’ (the italics are ours), thus clearly showing that such ex-officer had the record in his possession. And to support the position that the writ was properly directed the court quote the following from Bac. Abr. “ Certiorari,” E: “If the person who ought to certify a record, as a justice of the peace who hath taken a recognizance, or a judge of nisi prius who hath taken a verdict, or a coroner who hath taken an inquest, die with the record in his custody, the certiorari may go to his executor.” Certainly that authority would never be cited to show that the writ could run to one not in possession of the record. Neither can it be said from what appears in the case that the party to whom the writ was directed was not in the possession of the record in Harris v. Whitney. There was in that case no motion to quash the return, but it was claimed that the return was a nullity on the authority of Peck v. Foote, 4 How. Pr. 425, where the court held that the return was an official act, and could only be made
Upon the theory that the supplemental return contradicts the- record entries, and to show the competency o£ such return for that purpose the case of Blair v. Hamilton, 32 Cal. 50, is relied upon by respondent. That case is based upon Whitney v. Board, 14 Cal. 479, and Lowe v. Alexander, 15 Cal. 300. No other cases are cited. The California statute is identical with our own, so far as the scope of the writ is .concerned, though their practice act gives a wider range of investigation under the writ than we have; but that is immaterial. But these cases are hardly authority for the position. In Whitney v. Board and Blair v. Hamilton it was held that the superior court had the right to have before it the evidence on which the inferior tribunal based the conclusion that it had jurisdiction, and that, where this evidence did not establish jurisdiction as matter ■of law, the action of the inferior tribunal could be set aside. No effort was made in either of those cases to contradict any statement of fact contained in the record by matter resting in parol. ■In Lowe v. Alexander there was no question on certiorari before the court. An.incidental reference was made to the holding in the Whitney case. The learned judge who wrote the opinion' in the Whitney case used this language, at page 500: “The provisions of our statute are merely in affirmance of 'the common law. The nature and effect of the writ remains unchanged. Its functions are neither enlarged nor diminished, and the rules and principles which govern its operation are still the same.” Our statute being identical with that of California, of ■course all the decisions under the common law writ should have proper weight in this state. Many of the cases already cited announce in positive terms that the reviewing court can consider only the record made by the inferior tribunal, which is simply declaring in another form that the record cannot be contradicted. This is specially true of the cases cited from ■ Illinois and Massachusetts. The point is emphasized that the -record ’ cannot be contradicted, but the case must be decided
It is urged upon us, however, that the return to the supplemental writ does not, in fact, contradict the record of the justice as the statute requires it to be kept; that the statute nowhere requires the justise to enter the time or place of entering judgment; and that the words, “ Dated at Kindred, Cass county, N. D., January 3rd, 1890,” not being required by statute, form no part of the record proper, and hence can be contradicted by parol. It is true that entry is not specially enjoined. We may erase it, and still the difficulty is not removed, because the facts stated in that entry are necessarily presumed from what the law does require to be made matter of record. In every case in justice court when all the entries that the law requires to be made are made (and there is no claim that the transcript as returned in this case does not show all the entries required by statute), the record must necessarily show a valid judgment; otherwise a judgment of a justice of the peace could not be proven by the docket or a transcript thereof. But, as we have already seen, the judgment in order to be valid, must be entered at once on the return of the verdict, and the justice must make the entry while in the proper township and county. Hence, in this case, with the quoted entry erased, we must presume from the record that the judgment was entered on January 3, 1890, in Norman Township, Cass county, N. D.; otherwise we would have a judgment containing every entry that the statute requires, yet void on its face. To allow the necessary presumptions arising from a record to be contradicted by parol would be just as fatal to the record in every case as to allow the express words of the record to be contradicted. In Cassidy v. Millerick, supra, the justice stated that he called the case at the town hall three miles from his office, but the court said: “Upon such,a writ [certiorari] it must be conclusively pre
Concurrence Opinion
I concur on the ground that the record of the case showed that the judgment was entered at the proper time and place, and that this record connot be overthrown by the parol return. There can be no stronger presumption that an officer will make a false record than that he will make a false return. The issue between the record and the return cannot be litigated; and as one or the other must prevail, it is consonant with sound principle to give verity to the record.