30 Kan. 753 | Kan. | 1883
Petition by C. C. Watson, who prayed to be released from the custody of George Balch, as sheriff of Chase county. S. N. Wood, and Waters & Ensminger, for petitioner; and W. A. Johnston, attorney general, and Edwin A. Austin, for respondent. Hearing at chambers, July 31, 1883, before Brewer, J., who filed the following opinion, August 7, 1883:
This is an application in habeas corpus. The facts are these: The petitioner is in the custody of the respondent, the sheriff of Chase county, under a warrant of commitment issued by the district court of that county. It appears that in the early part of 1882, an information was filed against the petitioner, charging him, under § 15 of the crimes act, with administering medicines, drugs, etc., to a woman with a quick child, with the intent to destroy such child. The case was tried at the May term, 1882, and the defendant found guilty under § 44 of such act, of administering medicines, etc., with intent tó procure abortion. The motion for a new trial was made and overruled. All this took place at the May term. Thereafter a motion in arrest of judgment was filed, and continued to the December term. On the journals of that court of the December term, at its last day, appears an entry overruling the motion in arrest of judgment, and sentencing the defendant to pay a fine of $50 and costs. A bill of exceptions was duly signed, and such judgment appealed to this court, and the judgment affirmed át the July session of this court. (Ante, p. 281.) Now it is claimed by petitioner that this entry of a judgment at the December term of the district court is wrong; that in fact no judgment was then entered; that the entry on the journal is an interpolation and unauthorized; and that he has never been *
With some hesitation, in view of the decisions already made by this court, I think the latter proposition is controlling. It may be remarked in the first instance, that no fraud or deception has been practiced upon the petitioner. No entry has been surreptitiously made on the records of the district court. Everything that was done, was done, with the knowledge and assent of defendant’s counsel. He accepted the judgment, .which was apparently entered in due form, as valid, and sought by appeal to this court to have the same set aside. He treated it as regular for the purpose of an appeal, knowing at the time just what had been done.
Again, while the oral opinion and announcement of .the decision were made outside the district, yet the journal entry was signed within the district, so that as far any legal action was taken, it was taken within the district. Again, while Judge Peters had resigned and was no longer a regular judge of that court, yet as the parties voluntarily proceeded to a hearing before him and accepted his decision as the action of the court, such acceptance was equivalent- to a recognition of him as a judge pro tern., and precludes the parties from thereafter questioning his decision on the ground that he was not the- regular judge, and had not been selected and sworn as judge pro tern. (Higby v. Ayres, 14 Kas. 331.)
But beyond all these minor considerations, is that which is controlling with me. Where after final judgment and sen
I am aware that the doctrine of the assumed verity and conclusiveness of judicial records has been challenged oftentimes, and to a certain extent limited and restricted by the decisions of this court — notably in the cases of Mastín v. Gray, 19 Kas. 458, and Phillips v. Thralls, 26 id. 780. I differed from the majority of the court in both those cases; and yet while dissenting I have no disposition in any manner to question their binding force, or limit the extent of their application; but a marked difference exists between this case and either of those. In the first case there was no attempt to show that the action of the court was other than as appeared on the record, but it was held that that action was of no validity because the defendant had not been brought within the jurisdiction of the court, and that parol testimony was competent to show that no service had in fact been made, and that therefore no jurisdiction had attached. In the other case the proceedings were before an inferior court, a justice of the peace, and it was conceded on the face of the papers that his action was taken outside of the limits of his territorial jurisdiction. But it has not yet been decided by this court, and I think ought not to be, that where jurisdiction of the court of the person of the party is shown and unquestioned, the record evidence of what the court did may be set aside by parol testimony. Here, that the district court of Chase county had jurisdiction of the person of the defendant, is unquestioned. Now it seems to me incompetent to
I think that so far as this court has gone, the limit is placed here: you may show that the court in fact had no jurisdiction, because no process has been served; but when once it is admitted that the court did have jurisdiction, then I think the only evidence which can be received of the action of the court is its record, and that that record is conclusive against parol attack in any collateral proceeding. Suppose it be true that by fraud of a clerk an entry is interpolated improperly into the records of a court: of course such action would be a grievous wrong, but the remedy of the party is an appeal to the court in which the record appears, to have that interpolation stricken out. So long as that court permits it to remain, other courts must treat it as the action of that court, and as conclusive upon the questions decided by it. (Ellis v. Inhabitants of Madison, 13 Me. 312.)
The petition will be denied with costs, and the petitioner remanded to the custody of the sheriff.