Emery v. Whitwell

6 Mich. 474

• Court: Michigan Supreme Court
• Decided: July 1, 1859
• Status: Published

Opinions

Manning J.:

This case is brought here by writ of error, to correct alleged errors occurring' on the trial,’ in the rejection of testimony. Whitwell and Hoover brought an action of ejectment against Emery, in the circuit court of Calhoun county, to recover the premises in dispute, and of which Emery was in possession, claiming title. It appears from the bill of exceptions that on the trial the plaintiffs, to prove their title, gave in evidence a patent from the United States for the land in question, to one Reuben Abbott, dated August 15th, 1833; a deed from Abbott and wife to one Samuel W. Abbott, dated February 25th, 1841; a deed from Samuel W. Abbott and wife to Martha Mathews, dated June 3d, 1842; and a deed from Martha Mathews and her husband to the plaintiffs, dated March 23d, 1844. And defendant having admitted he was in possession of the premises, the plaintiffs rested.

The defendant claimed title to the land under a sheriff’s deed, given on a sale 'of the premises under an execution issued on a judgment obtained by defendant and his wife against Reuben Abbott, on the 6th of December, 1841, in the Circuit Court of Calhoun county. To prove the judgment, he offered in evidence the following entry on the journal of the circuit court, with the files and entries in the case:

'■’■Reuben Emery and Harriet L. Emery v. Reuben Abbott. Dec. 6th, 1841. '

“On hearing counsel in this cause, ordered, on motion of George Woodruff, plffs.’ att’y, judgment for the plffs. on demurrer, and that it be referred to the cleric to compute the amount due on the bond mentioned in plaintiffs’ declaration, and the cleric having computed the amount due by the condition of said bond, at $800, the penalty thereof, to be discharged on the payment of six hundred twenty-four dollars and eleven cents, with costs to be taxed (624.11).”

Also a transcript of a judgment, in this court, in the same cause, affirming the judgment of the circuit court with ten per cent, damages and double costs, on 12th September, 1842. This evidence, with other evidence offered, at the same' time and in connection with it, was objected to by plaintiffs, and rejected by the court; and an exception was taken by defendant.

Admitting the journal entry of the circuit, with the files and entries in the case, did not prove a final judgment, there was proof of such judgment in the certified copy of the proceedings in this court, where the judgment was affirmed, which shows a formal record of the judgment attached to the writ of error removing the cause here.

By the Revised Statutes of 1838, and previous thereto, it was the duty of the clerk of the circuit court to make, in vacation, a complete record in a book, of all cases finally determined, and at the next term to present such book to the judge, who was required to compare the record so made by the clerk, and, if found to be correct, to sign it. — Rev. Stat. 1838, p. 410, §10; Laws of Mich. 1827, p, 124, § 24. In 1839, judgment records were dispensed with in cases settled by the parties before final judgment.— 8. L. 1839, p. 223, §21. By the fee bill of 1840 (8. L. 1840, p. 183), the clerk was to have ten cents a folio for making a complete record in each case, when required to make it by a party, and not otherwise. And by the Revision of 1846, these several statutory provisions were repealed, and we now have no judgment record, properly speaking. The journal entries, files, and office entries, are the only records we have, since that Revision, of judgments in our courts of record. I mention these changes in the law to account for a formal record, signed by the clerk and judge of the circuit court, being in this court, while no record is to be found in the circuit court. Judgment was rendered in the circuit on the 6th of December, 1841, after the act passed in 1840, which act was virtually a repeal of the law requiring judgment records, except when one of the parties required a - record to be made. That one was made, and most probably at the request of the defendant Abbott, who sued out the writ of error, the transcript offered to be given in evidence shows. It was evidence both of such record and of the judgment of the circuit court, and the judge erred in rejecting it.

On the argument it was insisted by defendants in error, that the judgment of the circuit court should be affirmed without hearing the plaintiff in error, although in court, urging a right to be heard, and alleging error in the record, as the same questions had been decided in the court, in this same suit, against plaintiff in error, on questions reserved by the circuit judge on a former trial for the opinion of this court. When this is the case, the court will not, I think, be very likely to hear a second argument without some satisfactory reason for doing so, but will be governed by circumstances and a regard to the rights of the parties.

The questions before us are entirely different from the questions before the court in Whitwell and Hoover v. Emery, 3 Mich. 84. But one of the two questions decided in that case could possibly be made on the bill of exceptions before us, and that is one of no importance to either party, in the present aspect of the case. I allude to the amendment made on the first trial, by the circuit judge, of the journal entry- of the 6th December, 1841. The judge permitted the entry to be amended, by inserting the foEowing words between the words “at,” and “$800,” namely, “six hundred and twenty-four dollars and eleven cents, ordered final judgment for,” so that the entry would read “the clerk having computed the amount due on said bond at six hundred and twenty-four dollars and eleven cents, ordered final judgment for $800j the penalty thereof, to be discharged on the payment of,” &c. If it was necessary to decide whether such an amendment could be made, I should not, by reason of the decision in 3 Mich., feel warranted in refusing to hear counsel upon it, as we have facts before us touching the question that were not then before the court. The journal entry and subsequent proceedings, as the issuing of an execution and the like, were all the court then had to act upon. With all the prior proceedings in the cause before us, it is still my intention not to decide the point then decided, as from the views I have already expressed it is unnecessary.

There is a clerical error in the record of final judgment sent to this court on the former writ of error, in stating the judgment to be for the amount the clerk found to be due, instead of the penal sum of the bond, to be discharged on the payment of that amount. The error, however, is one so manifest from an inspection of the whole record, that it may not' only be amended at any time without notice, but the same force and effect may be given to the record as if it had been amended. The authorities are very full and clear on these points. Instead of naming them, I refer to the brief of counsel for plaintiff in error, where the cases may be found arranged under different heads.

The court, therefore, erred in rejecting the certified transcript of the record of this court; and as the further evidence offered was doubtless rejected on the supposition there was no proof of a judgment, I deem it unnecessary to notice the other assignments of error.

The judgment should be reversed, with costs.