Miller v. O'Neal

9 Iowa 446 | Iowa | 1859

StocktoN, J.

The affidavit upon which the application of the defendant, O’Neal, for the writ of error to the justice was based, set forth at 'length the testimony given by the plaintiff on the trial of the cause, with the objections made by the defendant to certain testimony offered, the decision of the justice on the admissibility of the testimony, and the exception of the defendant to the decision.

The justice, in his return to the writ, certified to the District Court a full and complete transcript of the proceedings in the cause, as recorded in his docket. The objection taken to this return of the justice by the counsel for O’Neal, on the motion for a rule upon the justice for an amended return was, that the justice had failed to make any return as to the evidence given on the trial, as set forth in the affidavit on which the application for the writ was based; and had failed to set forth the objections made by the defendant, O’Neal, to the admissibility of said evidence, and the ruling of the justice .upon said objection. The justice made return that he had no means of knowledge as to the statements in tbe affidavit of tbe testimony of tbe witnesses, except from bis recollection. As to the other matters concerning which he was required to mate return, he answered that the same were correctly set forth in the affidavit.

The question is whether this is a sufficient return; whether the fact that the justice had no means of knowledge of the correctness of the statements made in the affidavit, as to the testimony given on the trial, except from his recollection, is a sufficient reason for not stating in his return, what his recollection is as to the evidence given. When the statute says that the justice shall enter on his docket, in all trials had before him, a "note of all motions made, and whether refused or granted (section 2269, subdivision 11) it does not refer to motions made to exclude or reject evidence offered on the trial. It is no part of the duty of the justice to enter on his docket objections made to evidence, nor the ruling made by him on any question of the admissibility of evidence.

A bill of exceptions to the ruling of the justice, would make the same part of the record. If no bill of exceptions is allowed, and signed, the party must rely on the recollection of the justice to certify the evidence offered and objected to, and Ms ruling thereon. If the memory of the justice fails him, and he cannot- recall the evidence, it is the misfortune of the party. Rut he is entitled to all that the justice does remember, and to have the same certified by him; and it is no excuse for his refusal to make such certificate, that he has no means of knowledge of the truth of the statements of the evidence made by the affidavit, except his recollection. He must make return whether or not, according to his recollection, a correct statement of the evidence is given In the affidavit, and of his ruling on the motion to exclude the same.

When the justice is commanded by the writ of error to certify to the District Court, the record and proceedings in any cause, so far as they relate to the facts stated in the affidavit on which the writ is based, he is to certify not only such matters as appear of record by the entries on his docket, or by bill of exceptions duly allowed and signed, but he is to certify to any other proceedings stated bathe-affidavit, in order that the District Court may know whether they are stated therein correctly, and in order that the party may have the judgment of the District Court upon the alleged erroneous decision, or other illegality in the proceedings complained of. ■

The writ of error does not lie, however, to review the decision of the justice on the facts. Eor any such wrong-decision the party has ample remedy by appeal to the District Court.

The justice is not required to certify the evidence for the purpose of having his decision on the facts reviewed. It is only when the evidence set forth in the affidavit is required for the purpose of enabling the District Court to judge of the correctness of the ruling of the justice upon its admission or rejection, that the justice is required to certify to it.

Judgment reversed.