Swain v. Gilder, 61 Miss. 667

Swain v. Gilder

61 Miss. 667 | Miss. | 1884

Cooper, J.,

delivered the opinion of the court.

This is a scire facias to revive a judgment rendered by a justice of the peace on the 25th of January, 1879, in favor of the appellee against the appellant’s intestate. The record in the justice’s court is as follows :

“P. N. Gilder v. William Swain.

Note filed January 25, 1879, for $145.00. This action on promissory note for $145.00, dated December 25, 1877, and due one day after date; with inter- ... , „ .. , est at ten per cent, per annum from date.

R. A. Bangle, J. P.

This day personally appeared before me, the undersigned, justice of the peace, William Swain, who confessed judgment in open court in *671favor of plaintiff for one hundred and forty-five dollars and interest at ten per cent, per annum from date and all costs of this suit, the note dated December 25, 1877, and due one day after date, this January 25,1879. '

[seal.] R. A. Kyle, J. P.”

There is nothing in the record of the justice of the peace indicating that any process had been issued for or served upon the defendant. On the trial of the cause in the court below the appellant offered the plaintiff in judgment, P. N. Gilder, and proposed to prove by him, that he never held any note on the defendant, William Swain; that he had never sued upon any such note as that described in the record, and had never authorised any such suit; that he had no knowledge of the fact that such judgment had been in fact rendered until long after its rendition; that he had never ratified or approved the rendition of such judgment and had never taken any steps to enforce its collection during the life of the defendant nor since his death; that he had transferred the judgment to one Richard Swain, a brother of the defendant, but at the time of such transfer had distinctly informed the transferee that he had no claim or demand against the defendant, and that Richard Swain paid nothing for the transfer, but did agree to pay over to the witness a part of any collections which might be made on the judgment. This testimony was excluded by the court and a judgment of revivor entered.

The points presented are two : First, whether the record shows the rendition of any judgment against William Swain; and second, whether, on the facts offered tobe established, the judgment should have been revived.

The first question we answer in the affirmative, the second in the negative.

Judgments taken before justices of the peace are liberally construed by the courts, because of the unlearned character of the men by whom the office of justice is frequently filled, and because the justice, in entering the judgment, is performing a merely clerical duty. The test usually applied by the courts is that if upon looking at the record it sufficiently appears that every fact has been *672found which is necessary to give a right to the party to have a judgment entered, and the entry made was intended as the final act of the court in applying the law to the facts; or if all the facts being found, nothing was left but the clerical duty of entering up a final judgment, which it was the duty of the justice to perform in his clerical capacity, and the justice ignorantly failed to enter such judgment, but dealt with the record as if it was completed, then the judgment, however irregular, informal, or defective, will be upheld. Overall v. Pero, 7 Mich. 315 ; Matthews v. Houghton, 11 Me. 377; Fish v. Emerson, 44 N. Y. 377; Fetter v. Mulliner, 2 Johns. 181; Lynch v. Kelly, 41 Cal. 232.

But the testimony offered by the appellant would have shown that there was in fact no case before the justice upon which he could make any adjudication whatever, for there' was no plaintiff asking his decision. What was done was either upon the application of the defendant alone or of some other person assuming without authority to represent the plaintiff, who knew nothing of the proceedings, had no claim against the defendant, and has never ratified or approved the action taken in his name. There has been no change in the condition of the parties by reason of the unauthorized judgment, no one has been misled by it, and the rights of no third party are to be affected by its annullment. Its a mere pretense and cannot be made the foundation of any judicial proceedings. Wilcoxson v. Burton, 27 Cal. 229.

Judgment reversed.