Smith v. Moore

38 Conn. 105 | Conn. | 1871

Park, J.

A justice of the peace is a judicial and ministe-

rial officer. He performs judicial duty in the trial of causes, and ministerial duty in recording his judgments. He is both judge and clerk of his courts. His duties as recording officer are similar in every respect to those performed by the clerks of the higher courts. The only difference in the cases consists in the sources of knowledge that they have of the judgments that have been rendered which they are required to record. The one has primitive, and the other derivative knowledge. The one knows because he was judge, while the others rely upon information derived from the judge, or upon the correctness of their understanding what the judgment was in hearing it pronounced. But difference in the sources of knowledge, in this respect, makes no difference in the character of the duties they perform. They all are merely recording officers, and should be subject to similar rules.

Now it is well known that the Superior Court corrects its records, when the clerk through inadvertence has made a mistake. If the error is discovered at the term of the court in which the judgment was rendered, the record is corrected by direction of the court, without any formal application for the purpose. But if the term has expired before the mistake is-ascertained, then the correction is made by a formal application to the court; but, in either case, the power of the court to make the correction is never questioned. Weed v. Weed et al., 25 Conn., 337. The right to correct the record involves the right to ascertain what the record ought to be that needs correction. Suppose in such a case the clerk should be perverse, and refuse to obey the direction of the court to make the necessary correction; no one would question the power of the court to compel him by mandamus, or otherwise, to obey the decree -of' the court.

This authority was recognized in the case of The Boston Turnpike Co. v. The Town of Pomfret, 20 Conn., 590. That case further recognizes the doctrine that the Superior Court may by mandamus compel a town clerk to correct the records of the town that the court finds to be incorrect. The court say, “ the law further provides a most effectual remedy for any errors in their records, (to wit, the towns’), whether arising from design, mistake, or accident, by the writ of mandamus, by means of which these errors may be corrected, on the application of any person interested; so that, whatever may be the conduct, or disposition of the clerk, it is not at his option, either as to his first entries or subsequent alterations, to determine how the record shall ultimately stand.”

It seems to us that the same principle applies to a justice of the peace acting in the capacity of a clerk of his court. Should he refuse to make a record of a judgment rendered by him, or give a copy of - a record when properly demanded and his fees tendered, mandamus would lie at the instance of the party aggrieved to compel him to make the record in the one case, or give a copy of it in the other. This is not denied, but the claim is that the justice has the right to determine absolutely whether the record that he sees fit to make in the one case, or the' copy of a record that he sees fit to give in the-other, is correct; and the Superior Court has no right to review that question. The claim is that a record, or a certified copy of a record, imports verity, and a review of the question by the Superior Court would infringe this principle. This claim would apply with equal force to the correction of the récords of towns, or of the Supez’ior Couz’t, but the cases cited have determined otherwise. It is true they import verity, azzd the reason why it is found necessary to correct them when they do not state the truth, arises from this fact; Deeds and other instruments in writing import verity, and cannot be attacked collaterally, but still it is every day’s busiziess to correct them when they are erroneous.

Again, it is said that the act of a justice in making a z’ecord is a judicial act, azzd therefore mazidamus will not lie to control his discretion. We have already cozzsidered this question to some extent. It is znaziifest that the act partakes no more of a judicial character, than does the act of the clerk of a town, or of the Superior Court, izi performing similar service. The record is made after the judgment has been rendered, and it sometimes happens that a cozisiderable period of time intervezies before this duty is performed.

Again, it is said that mazidamus will zzot lie where there is other adequate remedy, and the petitioner has such remedy, if his claim is correct, in an actiozi for damages against the respondent.

Whether an action would lie if the respondent has acted in good faith in this transaction, may well be questioned; but it is unnecessary to determine the question, for we are satisfied, if the record of the respondent’s court is incorrect, the petitioner has the right to have it coz’rected, so that he may prove his special plea in bar in the suit pezzdizzg against him izi the Supez’ior Court, for the same cause and thing adjudicated in the respondent’s court. And furthermore, there is nothing in the case that tends to show that the respondent is able to respozzd izi damages, should judgment be rendered against him; and there is therefore no foundation for the claim that the petitioner has other adequate remedy.

We advise the Superior Court to issue the mandamus.

In this opinion the other judges concurred,