Crutcher v. Commonwealth

6 Whart. 340, 1841 Pa. LEXIS 41

Opinion

The opinion of the court was delivered by

Rogers, J.

The firm of Wanzer & Harrison brought suit to re-’ cover the amount of two notes from Thomas E Wilson. Crutcher and Morgan, who, with Wilson, are the present defendants, became bail in the action,- and entered into a bail bond to the commonwealth, in the sum of nine thousand dollars, on this condition; that if Wilson should be condemned in the action brought against him, he would satisfy the condemnation money and costs, or surrender himself into the custody of the sheriff; or that in default thereof, Crutcher and Morgan would do so for him. The suit against Wilson was brought to the March Term, 1839, a copy of the notes was filed, and on the 20th of April, judgment was entered for want of an affidavit of defence. A reference was made to the prothonotary, in the usual manner, to assess damages; and on the 1st of May, 1839, the damages were assessed at the sum of $4669 50, as appears by a paper filed in the handwriting of the prothonotary of that date. On the same day this entry is made by him on the docket, “ May 1, 1839, damages assessed at $1231 50,” On the 14th of May, Crutcher and Morgan enter into a recognisance in open court as security for a stay of execution, in the sum of $2700, sub. con., that if the defendant do not, &c. pay the amount of the debt, &c. recovered against him, they will pay the amount for him. This suit is brought upon the bail bond, against the principal and bail; and the plaintiff avers that Wanzer & Harrison, in the original suit, recovered from Wilson $4669 29, which were adjudged to them for their damages, &c., as for their costs and charges expended. The defendants, in substance, deny that there is any such record as it is set out in the declaration; and in support of this>plea rely on the entry on the docket, which they aver to be the proper and only judgment rendered. They further contend that by the entry of security for the stay of execu- ■ tion, they are 'discharged from suit on the bail bond; and. that the plaintiffs’ remedy is on the recognisance of bail. And whether the docket entry, or the paper filed, is the judgment of the court, is the principal question. It cannot be doubted that in the various acts of assembly which have been cited at bar, particularly the acts of the 29th of March, 1827, 8th April 1833, and the 17th of June, 1839, {Stroud’s Purd. 906, title Records,) the legislature recognises the docket as the proper and only place for the entry of the judgment. The third section of the act of the 29th of March, 1827, is very strong to this point; for in that section it is made the duty of theprothonotafiy of the several Courts of Common Pleas, District Courts, and Circuit Courts, to prepare dockets to be called the judgment dockets, in which the legislature directs shall be copied the entry of every judgment, and every award of arbitrators, immediately after the same shall have been entered. It then particularly prescribes the manner in which the entries shall be made. Even before this act, and certainly since, no doubt has rested in the mind of any person that the entries of the judgments must be then' made; and it would be a dangerous innovation, most destructive to the rights of suitors, if any other practice should receive any countenance from the courts; that the solemn entries made in conformity to the express direction of the act, should be controlled or set aside by memorandums, made on loose scraps of paper, and filed as part of the proceedings.

The universal practice, throughout the commonwealth, has been to the contrary. Persons about to loan money on real security, or to purchase real estate, look only to the judgment as ascertained and entered on the docket. They never think it necessary for their security to examine every paper filed, or other minute or memorandum on the record, to ascertain whether the prothonotary has mistaken the proper entry. If this were the case of a subsequent judgment creditor or mortgagee, it would not admit of argument that they could be affected only to the amount of the judgment, as it appears on the docket. And it is yet to be shown, that the defendants who are bail, and therefore favourites of the law, are in a worse situation in that respect, than subsequent judgment creditors, mortgagees or purchasers. This can only be done by showing that they are parties or privies to the original suit, in which they are bail. But that they are neither, is very clear, for they have none of the rights of privies or parties. They cannot interfere with the suit in any way, except in case of fraud, or when the defendants have absconded ; when the courts may interpose to prevent injustice, or permit them to come in and take defence. But in an ordinary case, they have no day in court. They cannot subpoena witnesses, interfere with the trial, or in any way control the amount of the judgment, or the manner or place of the entry of the judgment. As to the judgment and the amount of it, and in every other respect, the parties themselves are the exclusive judges; they may and do act as seems right to themselves, by amicable agreement, or confession, and that in direct opposition to anything the bail may say or do. Any suggestion of theirs might be regarded an impertinent interference with the business of others, and foreign to .their duty as bail. Nor have they any just right to complain of this, as they can at any time relieve themselves from responsibility, by a surrender of their principal. It is very probable that the entry here, was made by mistake; and the court on motion would and indeed have allowed the record to b.e amended, as there was something to amend by; but until it is amended, the judgment must be taken to be rendered for the sum entered on the docket. And this I apprehend would be the case even between the parties themselves; but be this as it may, as to third persons, nothing we think can be clearer. It is said to be hard that the plaintiff should suffer by the mistake of the prothonotary; but if he has been injured by that officer, he has his remedy. Likewise it must not be forgotten, that a different doctrine may operate with peculiar severity on the defendants. They may have had in their hands an indemnity to an amount .equal to the sum recovered, as it appeared on the docket; and for this reason may have deemed it unnecessary to surrender their principal; or for many reasons they may have preferred to pay that amount, rather than surrender him, when they would have been unwilling to encounter a much larger responsibility. But the case further shows, that security was entered for a stay of execution; and .according to the case of Roup v. Waldhouer, (12 Serg. & Rawle, 24,) the bail are discharged. In that case it is decided, that the entry of security to allow a stay of execution, operates as a discharge of a recognisance in tHe nature of special bail. But the action proceeds on the notion that the recognisance of bail is a nullity, because it is given in a less sum than the amount of the judgment. But in this assumption the plaintiff is mistaken, as has been already proved. But to subject the defendants to this suit, it is necessary to show that the bail were at liberty to treat the entry on record, the recognisance taken in open court on notice to the plaintiff, as a nullity; and that notwithstanding these proceedings, they have the right to surrender their principal. The affirmative of this proposition it will be difficult to maintain. It is nothing that in this case the absolute or special bail are the same persons, as it is not alleged that they knew, and they are not bound to know, that a mistake had occurred in the entry of judgment. In that respect they are in the same situation with strangers, and are bound, as all others are, to look to the docket, and no further, to ascertain the amount due; and for aught that appears they fairly and honestly entered the security by which their relation was changed from special to absolute bail, for the amount of the judgment rendered. As they could not surrender their principal, as it is very clear they could not, they are discharged from their first responsibility. They have omitted nothing which the law exacts from them; and without some default, it is not in the power of the parties by their mistakes, nor of the court to suspend their right for an instant, without discharging them altogether. Hence as the record stood, some time elapsed when they were unable to discharge themselves by a surrender of their principal, without his consent, and the consent of the plaintiffs in the original action. Both had an interest which they might be unwilling to submit to the control of the defendants : the principal might object to a claim of any right of surrender of his person, until the expiration of the stay of execution; and on the other hand, the plaintiffs had a right to insist on their recognisance not being in any way impaired, as the latter was a much better security than the .former,, one being special bail, the other absolute security for the amount of the judgment on the docket. If the argument of the plaintiffs hold good, a mistake to 'the value of one cent in the entry of judgment on the docket, will vitiate the recognisance, and discharge the recognisor. The plaintiffs would in that case lose their debt, and the defendant would, as before, be exposed to imprisonment, at the option of his bail or the plaintiffs. I cannot consider the recognisance void, but whilst the record stands unamended, it binds the recognisor, and of course is a bar to any suit against the special bail. .

Since the trial, and after writ of error, the District Court has amended the record. We do not doubt their power to do so, as between the parties themselves, but it cannot be seriously urged that the court can allow an amendment to affect the rights of a subsequent judgment creditor, a mortgagee, or a purchaser; nor can this b.e done against the bail to the action, who are neither parties nor privies to the original suit. In Black v. Dobson, (11 Serg. & Rawle, 97,) the doctrine is expressly asserted that the court cannot by amendment deprive subsequent judgment creditors or niortgagees of any legal advantage which they may have obtained. - This principle is so obviously just, as 'hardly to need the aid of authority.

It has been suggested in the argument, that a writ of error will not lie to the judgment of the court on a plea of nul tiel record; and for this position the counsel rely on the case of The United States in error v. Cook, in which this point is expressly decided. But a contrary practice has obtained without ’objection in this state, and to such as extent as the cases cited show, that it is - not how an open question. It is too late to doubt the power of the court to review in such cases the decisions of inferior tribunals. On issues of nul tiel record, points are frequently involved of the greatest nicety and difficulty, on which the right to property of great amount may depend. It has been the policy of this state to give every facility to the settlement of such questions in the court of the highest resort; and it would answer no beneficial purpose now to retrace our steps, merely for the purposes of harmony with our sister states. But it is insisted that although a writ of error may be taken to such judgment, we have here no judicial knowledge of the identity of the record, on which the parties went to issue, and that the proper course was to put it on the record by bill of exceptions, or to make it part of the proceeding by craving oyer, or by consent. The case in 4 Yeates, 497, was the exemplification of a record of a foreign state, which was adjudged by the Common Pleas incompetent testimony of a foreign judgment, on the plea of nul tiel récord. The decision of the court on this point was reversed by the Supreme Court; and on the argument, the counsel on both sides considered the exemplification accompanying the record as the identical paper offered in evidence to the court below. After the decision of the court overruling the opinion of the Common Pleas, the defendant’s counsel objected to the Supreme Court taking any notice of the paper alleged to be the exemplification of the Connecticut judgment, the same not being certified by a bill of exceptions or any agreement of counsel. After taking time to advise, the Chief Justice delivered the opinion of the court, that having theretofore determined that the exemplification of the judgment in Connecticut was good and legal evidence, the judgment of the Court of Common Pleas was reversed, and the record remitted thither for further proceedings thereon. No reason was assigned by the court, and the only written opinion is by Judge Breckerridge, who enters very fully into the point, the result of which is, that a paper could not be known judicially, but as coming up under a bill of exceptions or tacked to the record on a profert, to the plea, after oyer, or to the replication, before issue joined; that it rfiust appear to be the identical paper that was overruled, by other evidence than what is dehors the record. But the majority of the court do not concur with these views, but decided that a bill of exceptions was not required, and that evidence short of record evidence would suffice to identify the paper.

In Pennsylvania the bill of exceptions in such cases is unknown. The record is brought into court on a day given, as was done here, and the trial is on the record. When the cause is removed by writ of error, the record is certified by the court without bill of exceptions, or making the record brought into court for inspection a formal part of the proceeding. It must be admitted that the practice on this head is not in strict accordance with the practice of other tribunals, 2 Mason, 22; and most probably the error in the practice took its rise from the case of Fry v. Executors of Harvey, (4 Yeates,) on which the defendant in error relies. The court in the commencement of the case was impressed with the difficulty of considering what was not formally attached as part of the record, and proposed sending the cause back to the District Court, that it might be tacked to the record by a certificate from the court. But this course the counsel for the defendants very properly rendered unnecessary by producing an exemplification of the record, and consenting that it should be considered a part of the proceedings. After this, we have as satisfactory proof of the identity of the paper, as was conceived sufficient in Fry v. Harvey, to warrant the court in rendering judgment.

To avoid difficulty hereafter, it would be well for the profession .to attend to having the record on which issue is joined, attached to and made part of the record returned, either by bill of exceptions, or in some other mode, by consent or otherwise.

Judgment reversed; and judgment for the defendants.