Gilman v. Libbey

10 F. Cas. 406, 4 Cliff. 447

• Court: U.S. Circuit Court for the District of Maine
• Decided: April 15, 1878
• Status: Published

Opinion

CLIFFORD, Circuit Justice.

Courts of record have power at any time, as well after as during the term at which any entry is made, of their own motion, or on the suggestion of any party interested, and without notice to any one, to correct the mistakes and supply the omissions of their clerks or recording officers, so as to make the record conform to the truth of the case, and they are the exclusive judges of the necessity and propriety of so amending and correcting their records, and of the sufficiency of the proofs offered to show the existence of such necessity and propriety. Balch v. Shaw, 7 Cush. 282. Authorities to show that such courts have full power to amend their records, and that they are the sole judges of the correctness of the entries made therein, and of the necessity and propriety of any such correction, are numerous, unanimous, and conclusive. Sheppard v. Wilson, 6 How. [47 U. S.] 277; Hudgins v. Kemp, 18 How. [59 U. S.] 534; Close v. Gillespey, 3 Johns. 526; Lee v. Curtiss, 17 Johns. 86. It must be so, else the rule which rigidly excludes all evidence to contradict or control a record, when offered in support of judicial proceedings, would work very gross and irremediable wrong and injustice. Hence the universal rule that the mere omission or misprision of a clerk cannot be permitted to deprive a party of his rights, if the means of supplying the defect or correcting the mistake are within the reach of the tribunal whose proceedings are erroneously or defectively recorded. Batty v. Fitch, 11 Gray, 185.

Services as an attorney and counsellor at law were rendered by the respondent for the complainant, in certain matters of litigation and proceedings for the partition of certain real estate devised to her by her deceased father, in common and undivided with certain other parties. It is not denied that the respondent rendered cértain services; but the complainant alleges that he rendered them for her as the executrix of her father’s estate, and that he agreed that he would look to the estate alone for reimbursement for any services he might render, and that he would not hold her responsible for the same until he should render the bill to the estate for such services, and that she should in no case be held liable for any sum over and above what she should receive from said estate for such payment; that diming the' year 1871 he rendered an account for such services, amounting to $563.71, which was presented to the proper probate court for allowance, where it is still pending.

All of these matters are merely preliminary to the more material grounds of complaint, which are as follows:—

That the respondent brought an action against her, returnable to the supreme judicial court of the state, held at Augusta, within and for the county of Kennebec, on the first Tuesday of March, 1S75, and that he caused her real estate situated in that county .to be attached, to respond for any judgment he might obtain. Certain proceedings as to notice followed, which are not material in this investigation.

That the account annexed to the writ amounted to $S98.71, including charges to the amount of $335, in addition to the amount pending in the probate court, which subsequent charges, the complainant avers, are unjust, exorbitant, and greatly disproportionate to the services rendered, and that, if rendered at all, were rendered without her knowledge, consent, or authority'.

That she applied to the respondent for an explanation, whereupon he represented to her that the service of the writ was a matter of form only, and for her benefit; that he would not take any further proceedings in the matter, but would let it remain as it then was, and wait until she should get the amount allowed out of the estate, and would not in any way prejudice her in her rights and interests in her property.

That, contrary to his said representations and promises, the respondent proceeded to have the notice proved, and, at the October term of the court, 1S75, caused her to be defaulted, and the cause to be continued to the next term.

That, at'the next term of the court, holden at Augusta the first Tuesday of March, 1876, the respondent was the presiding justice, and that, as such justice, he did unlawfully and improperly, without any consent of the complainant, and without having jurisdiction of the cause, render, order, and decree a judgment in said cause, in favor of himself; as plaintiff, and against the complainant, as defendant, for the sum of $900.10 debt or damage, and ¡flS.ll costs of suit.

That execution issued on the said judgment, and that the sheriff seized and sold all the right the complainant had to redeem the certain parcels of real estate described in the bill of complaint to the respondent, he being the highest bidder, for the sum of $1,020.78.

That the sheriff conveyed the premises sold to the respondent, who caused his deed for the same to be duly recorded.

That the respondent, instead of admitting that said proceedings were a mere form, and for the benefit of the complainant, now pretends and claims to hold said real estate as under a legal and valid levy and sale, and that said judgment, execution, levy, and sale are' valid and legal, and that he is entitled to keep the title under such levy, purchase, and sale.

Service was made, and the respondent appeared and filed an answer. Such parts of the answer as are deemed material in this investigation will be reproduced, and no others.

He admits that he was, at the time alleged, an attorney and counsellor at law, and that he was in the practice of his profession; that he was retained by the complainant specially and generally, as fully set forth in the answer, and that he did appear and act for her in suits where she was a party In her own right and as executrix.

Matters of that sort are fully admitted; but he alleges that the allegations in the bill of complaint, in respect to the alleged contract between him and the complainant, “are not true in whole or in any particular.” Before denying the same, the answer copies the allegations of the bill of complaint, and appends thereto the denial that those allegations “are not true in whole nor in any particular,” which must be understood as equivalent to a separate denial of each of the preceding allegations.

That the suggestion was never made to the respondent, that he must rely upon the said estate for payment, until August, 1875, but that the employment was made and the services rendered in the ordinary mode of retainer and employment of counsel, with nothing agreed as to the manner of payment.

He admits that he rendered the said bill, and requested payment, but alleges that a large portion of it was for services rendered her in her private capacity, and in no way relating to her capacity as executrix.

He also admits that he commenced the suit for the full amount of his account; that the real estate was attached, and the proceedings had in respect to notice; but avers that the allegation that the service of the notice was the first information the complainant had of the suit is not true; that, before the said service, he had an interview with her, in which he fully informed her of the pendency of the suit and of the reasons why he commenced it, and urged her to employ counsel to appear to save the cost of service and to protect her rights, but that she declined to do so, and that thereupon he procured the order of notice and had the writ served.

That the charges in his account for services rendered subsequent, to the first bill pro-sented, were rendered with the knowledge of the complainant in the suits specified in the answer and that the charges are fair, reasonable, and just.

He avers that the allegations of the bill of complaint, as to the representations and promises which it is alleged that the respondent made when the complainant called upon him for an explanation, are not true. On the contrary, he alleges that he had an interview with her on the day before the writ was served, in which he informed her of the pendency of the suit, and stated to her the reasons why he commenced it, which were in substance that he had been rendering services and making disbursements in her behalf f.or several years without payment, and that he thought it was for his interest, as well as hers, in view of the circumstances stated, that he should secure his debt.

That it was then, for the first time, that the complainant requested him to rely on her father’s estate for payment, which he declined to do, explaining to her that he had no claim against said estate, that his employment was by her, and that he must proceed with the suit.

That it is not true that, at the time the judgment was rendered in the case, the court was held by the respondent; nor is it true that he rendered, ordered, or decreed judgment in the same in favor of himself against the complainant. His denial in that regard is explicit and unqualified; and he avers that the court, at the time the judgment was rendered, was held by Charles Danforth, a justice of said court, and that said judgment was rendered, ordered, and decreed by said Charles Danforth, so holding said court as a justice thereof, and that the respondent, at the time of the rendition of said judgment, was holding a term of said court as a justice thereof in Calais, in and for the county of Washington, in said state.

The respondent also admits that he assured the complainant and her counsel, before she brought the bill of complaint, that he would not claim a forfeiture of the estate if she should not be able to redeem within the time limited by law. and he avers that he met her counsel on the fourth of July, 1877, who then paid him the full amount due to redeem said estate from said sale, and that he, the respondent, then and there delivered to her said counsel his deed of release and quitclaim in due form, dated one day earlier, releasing and conveying to her all of said estate sold and conveyed to him by the sheriff in virtue of the execution issued upon the said judgment.

Where the answer is responsive to the bill of complaint, and positively denies the matter charged, and the denial was in respect to a transaction within the knowledge of the respondent, the answer is evidence in his favor, and, unless it is overcome by the satisfactory testimony of two opposing witnesses, or of one witness, corroborated by other facts and circumstances, which give to it greater weight than the answer of the respondent, it is conclusive, so that the court will neither make a decree nor send the case to trial, but will simply dismiss the bill of complaint. 2 Story, Eq. Jur. (8th Ed.) § 1528; Banks v. Geary, 5 Pet. [30 U. S.] 111. Two witnesses, or one witness with probable circumstances, says Marshall, O. J., will be required to outweigh an answer asserting a fact responsively to a bill in equity. He also states very clearly the reason for the rule, which is that, when the complainant calls upon the respondent to answer an allegation, he admits the answer, if duly filed, to be evidence, and if it is testimony, it is equal to the testimony of any other witness, and as the complainant cannot prevail if the balance of proof is not in his favor, he must have circumstances in addition to his single witness in order to turn the balance. Clark’s Ex’rs v. Van Reimsdyke. 9 Cranch [13 U. S.] 160; Hughes v. Blake, 6 Wheat. [19 U. S.] 453; Delano v. Winsor [Case No. 3,754].

The application of that rule to the pleadings in the case before the court disposes of most of the issues between the parties without entering into any discussion of the proofs. Two of the charges, however, are of such a character that they ought not to be passed over without careful examination. They are as follows:—

1. That the respondent presided in the court and rendered the judgment against the complainant in his own favor.

2. That he induced the complainant not to defend his suit against her, by promising that he would not claim a forfeiture of the estate in case the judgment was in his favor, and she did not pay the same within the time limited by law, and that he refused to fulfil that promise.' '

Flagrant as the first charge is, it is proper to say in the outset that there is not a word of truth in it when the facts are properly understood. Sufficient appears to show that the term of the court referred to, commenced at Augusta on the 7th of March, 1870, the respondent presiding .as a justice of the court, and it is conceded that he continued to preside all, or nearly all, the time until near the close of the term, when he was called away to hold a term of the court in a distant county of the state. Oases of the kind often arise where a justice who has been holding a term in one county, is obliged to leave to discharge the duty assigned to him in another; nor is it at all unusual that another justice in such a case comes in to finish the term left without a justice, in consequence of the departure of the one who, up to that time, had held the term. Pursuant to that custom, Justice Danforth came in and held the court at Augusta on the last’ day of the term. Judgments not previously rendered are usually rendered on the last day of the term by special order, or under the general order. Beyond all doubt, the judgment in this case was rendered by Justice Danforth at a time when the respondent was holding court in Washington county, at a point quite distant from the capital of the state. Justice Libbey had held the court at Augusta for nearly the whole term; and the clerk, in making up the record, omitted to state that it was Justice Danforth who presided on the last day, when the judgment in. this case was rendered. Before the record was corrected, the bill of complaint was filed in this case; but, at the August term, 1877, of that court, holden at the same place, the following proceedings were had, to wit: “And now, on inspection of the records of this court, in this county, for the March term thereof, 1870, it appearing that an error exists in said records, in that it appears that Artemas Libbey, a justice of said court, presided on the last day of said March term, 1870, the day of the rendition of judgments-at said term, when in fact Charles Danforth, justice, presided; wherefore it is ordered that the clerk amend said records by inserting the following words in the caption thereof, to wit: ‘and by the Hon. Charles Dan-forth, a justice of said court, on the forty-second and last day of the term.’ ” Power to make that correction was clearly vested in the court, as appears by the authorities referred to, and by many others which might be-cited. People v. McDonald, 1 Cow. 189; Buckingham v. Dickinson, 54 N. Y. 682; Palmer v. Lawrence, 5 N. Y. 455; Bank v. Wistard, 3 Pet. [28 U. S.] 431; Fay v. Wenzell, 8 Cush. 317. Nothing can be plainer in legal decision than the proposition that it was entirely competent for the court to make the said correction, and if so, all will agree that justice and truth required that it should be done.

Nor is there the slightest foundation for the second charge, or for any imputation of unfairness, breach of agreement, deception, or attempt to- mislead the complainant, on the part of the' respondent. Her counsel called upon the respondent for the purpose of adjusting the matter, and they mutually fixed a day when they would meet to transact the business; and when the day came, they met, and the respondent received the money due, and delivered his deed in due form and duly executed, to her attorney, conveying all the right he acquired under-tlie sheriff’s deed to the complainant. Whether she has ever accepted it or not does not appear, nor is it of any importance to inquire, as it is clear that she can have it -whenever she pleases.

Suggestion is made that the respondent is not entitled to costs, because the record had ■not been corrected when the bill of complaint was filed; but the court, both judges concurring, is unhesitatingly of a different opinion. Even if the record itself did not suggest the error, it is plain that, if counsel had seen fit to make any inquiry upon the •subject, they would readily have ascertained that the respondent was not presiding when the judgment was rendered.

Decree for the respondent that the bill of ■complaint be dismissed, with costs.