Leathers v. Cooley, 49 Me. 337

Leathers v. Cooley

49 Me. 337 | Me. | 1860

Lead Opinion

The opinion concurred in by a majority of the Justices was drawn up by

Mat, J.

The objection urged in defence to the plaintiff’s right to recover, is, that the recognizance upon which he has declared was never recorded in the appellate Court, and that the record does not show that judgment had been rendered in the action wherein it was taken, prior to the commencement of this suit. The only record evidence of the recognizance, and of the rendition of judgment, consists in certain entries found upon the docket of the appellate Court, and upon the back of the recognizance, from which it appears that judgment was in fact rendered and the recognizance filed in that Court before the bringing of this suit. It further appears that the judgment had not in *342fact been extended upon the record, because the writ and papers in the case had not been furnished. The entries upon the docket appear upon their face to have been made at the September term, 1858.

The rule is now well established that the docket is the record until the record is fully extended, and the same rules of presumed verity apply to it as to the record. Pruden v. Alden, 23 Pick., 184. The entries thereon are presumed to have been made by the clerk under the direction and authority of the Court, and this presumption cannot be controlled by the testimony of the clerk or the Judge. Read v. Sutton, 2 Cush., 115; Longley & al. v. Vose, 27 Maine, 179. The entries upon the docket sufficiently show that judgment had been entered up before this suit was brought, and the testimony of the clerk, which was offered in defence, to show that such was not the fact, having been seasonably objected to, was wholly inadmissible.

The objection that the recognizance was not in fact entered at large upon the record is alike unavailing. It is sufficient that it was returned to and placed upon the files of the Court. The minute made by the clerk upon the back of it, as well as the direct testimony in the case, .shows that this was done before suit brought. This was held to be sufficient in the case of Paul v. Newell, 6 Maine, 239, where the recognizance was taken in the Court of Common Pleas. In the case also of Benedict v. Gutting, 13 Met., 181, where the recognizance was taken, as in the present case, before a justice of the peace, and not returned to the appellate court until after final judgment, and then not extended upon the record, it was held that an action after-wards brought upon it might be maintained, because the recognizance itself, being put upon the files of the Court, was a record within the meaning of the law, though not extended on the book of records, and showed upon its face the cause of the caption and the jurisdiction of the justice, and we cannot doubt that such is the law.

The cases of Bridge v. Ford, 4 Mass., 641, Dodge v. *343Kellock, 10 Maine, 266, and Libby v. Main, 11 Maine, 344, upon examination, are found not to be in conflict with the law as above stated. They were all cases of demurrer to the declaration, and each declaration, upon inspection, was found to contain no allegation of any record, and were therefore properly held to be insufficient. The question was not raised whether the return of the recognizance to the appellate Court, and placing it on file, would be a sufficient record, and there was no allegation or proof, in either case, that any such fact existed.

The suggestion of the counsel in defence, that there could not have been any judgment lawfully made up before the bringing of the suit, because the party prevailing had not filed the papers in the case, as required by the 35th rule of this Court, is based upon evidence tending to contradict the record,' and therefore not admissible, and comes with an ill grace from the defendant, whose duty it was to put the papers on file; and the judgment having in fact been made up, as appears by the docket, which is the only record, the Court will not receive parol evidence of any fact tending to show that it was not made up in accordance with the rule of the Court referred to. The defendant is estopped by the record as it is. He ought not to bo permitted to gain advantage, or inflict injury, by his own neglect.

Exceptions sustained. — Nonsuit set aside.

Rice, Goodenow, Davis and Kent, JJ., concurred.

Dissenting Opinion

Cutting, J.,

dissenting. — The administration of justice requires this Court to be governed by fixed rules as well of the common law as those established by the Court itself, in furtherance thereof; and the question in this case arises, whether those rules shall be of any avail. The present action is debt upon a recognizance given by the defendant before a justice of the peace, conditioned that "he shall prosecute his appeal with effect and pay all costs after such appeal.” And the averment in the plaintiff’s declaration, among other things, is, that at the September term of this *344Court, 1858, lie recovered judgment against the' defendant for $20,00 debt, and costs of suit, taxed at $62,67, of which $54,07 accrued after the appeal. The recovery of the judgment was a material allegation, and was to be shown at the trial by record evidence remaining in the appellate Court, it being a Court of record. It is not denied that the defendant appealed from the decision of the magistrate and gave the recognizance as before stated.- It became, therefore, his duty to furnish the original recognizance and copies of the original papers, and file them in the appellate Court, at the time of the entry of his appeal; otherwise, unless for good cause shown why it was not done, on motion of the appellee’s attorney, his appeal should have been rendered ineffectual. But it seems, in this case, no such proceedings were had; neither the papers were furnished by the defendant, or any motion made by the plaintiff, founded on such omission. The appeal was entered at the September term of this Court, 1855; the action referred in the summer of 1858, and the report made and accepted at the September term of the same year; at which term the following is the docket entry under the action, and the only record evidence offered, viz. : "Referred to H. A. Wyman, Esq., 17 (day) Report offered and accepted. Debt $20,00; cost $62,67.”

. The present action on the recognizance was commenced on December 7, 1858, the plaintiff having caused the recognizance to be filed three days before, -and came on for trial at the December term, 1859. From the foregoing elements of proof it became necessary for the plaintiff, in order to maintain his action, to show by legal testimony that he had recovered a judgment, which, in the opinion of the presiding Judge, he failed to do, and a nonsuit was ordered.

Now, then, the question arises, whether at the trial there was legal evidence before the Court, that a judgment had been rendered before the commencement of the action. A judgment is defined to be — "the decision or sentence of* the law, given by a Court of justice, as the result of proceedings instituted therein, for the redress of an injury.” *345And a record to be — "a written memorial made by a public officer authorized by law to perform that function, and intended to serve as evidence of something written, said, or done.” But, "every minute made by a clerk of a Court for his own future guidance in making up his record, is not a record.” 4 Wash., C. C. Rep., 698. There was then no record of a judgment, or sufficient materials for a record in the possession of the clerk, either when the action was commenced or at the time of the trial; at which time " the clerk testified that he had never made any extended record of the judgment, because he never had received any copy of the writ and appeal papers.” And, by the 35th Rule of this Court, he never can hereafter make up and complete his record, except upon petition to, and permission by this Court, after due notice to the adverse party, and on the payment of costs by the petitioner to such party, if he appears, and to the clerk for recording the judgment.

It is not denied that docket entries, in some cases, through necessity, may be introduced as evidence instead of an extended record, before the clerk has had time and an opportunity to complete the record, but all the elements necessary for the record should be in his possession, and not otherwise through the neglect of the prevailing party. In this case the copy of the writ, the very basis of the action, and of the proceedings before the magistrate, has never been filed in this Court or been in the clerk’s possession. In fact, from what was shown by the plaintiff on the trial, it sufficiently appeared that no record had been or could be made without subsequent proceedings in this Court, which depended wholly upon a future contingency. The elements for ^he record of a judgment were vague, scattered and chaotic. The great industry of the plaintiff’s counsel, and the indulgence of the Court, may hereafter collect and put them into form, and, until that time shall arrive, the plaintiff will have no legal proof of a judgment. In my opinion the nonsuit was properly ordered.

Tenney, C. J., and Appleton, J., concurred.