Perryman v. Burgster , 6 Port. 99 ( 1837 )

COLLIE.E, C. J.

The record informs us, that the defendant in error made complaint before Samuel Pitts, a justice of the peace, of Wilcox county, against the plaintiffs, of a forcible entry and detainer, made by the n, in and of a house and lot, situate in Daletown, in that county: that process was issued, as the statute directs in such cases; and that Alexander Perryman, being appointed their guardian, ad litem, a trial was had before John Vincent, a justice of the peace of Wilcox county, on the plea of not guilty, when a verdict was found and judgment rendered, in favor of the defendant in error, for the recovery of possession, and also against the guardian, ad litem, for costs.

The plaintiffs then prayed for, and obtained a certi-orari, for the removal of a perfect transcript of the record and proceedings of the case, to the Circuit court, for revision. At the return term of the certio-rari, upon a suggestion, that the transcript was imperfect, which accompanied it, an alias certiorari was asked for, and awarded. At the succeeding term of the court, the plaintiffs moved the court for a pluries certiorari, and to amend the record, by certain affidavits filed, and for a rule against the justice, requiring him to amend his return. All of which was overruled. The plaintiffs then demanded a trial de novo, which was also denied, and they were forced to join in error.

The plaintiffs then suggested to the court, that there was no return to the alias certiorari.

The defendant’s counsel then produced a paper, purporting to he a transcript, signed J. Vincent, J. P. [seal.] — and dated the eighth May, eighteen hundred and thirty-five, which they stated, was among the papers of the cause. It was not shewn when, or by whom it was filed. — —It was in no manner, attached to the certiorari; and there was nothing to identify the transcript produced, with the certiorari, other than the contents of the papers: and, notwithstanding the ob~ jection of the plaintiffs, that this was no return, the court determined it to be sufficient. To all which . decisions, the plaintiffs excepted. The questions of law arising upon this bill of exceptions, as well as those raised in the Circuit court, are here assigned for error.

Several of the errors assigned in the Circuit court are not sustained by the record, and it will, therefore, be unnecessary to notice them.

It has been so often decided, that it may now be considered the settled lav/, that cases of the character of the one at bar, when removed by certiorari, from a justice of the peace, to the Circuit court, are to be tried upon the transcript of the proceedings sent up, and not by a re-investigation of the matters of fact before the jury. There is, therefore, no error in the refusal of the court, to accord to the plaintiffs, that description of trial.—McDonald vs Gayle;^* Dunham vs Carter and Carroll.^†

In regard to the motion in the Circuit court, to amend the transcript upon affidavits, shewing the ne-glectof the justice, to record fully, the matters occurring on the trial, which the statute requires to be recorded, we think it was properly denied. The transcript should be sent up by the justice, correctly, and though it be inaccurate, it cau not thus be amended.

The correct practice, when the justice has omitted to perfect the record, it seems to us, is to move the Circuit court for a rule against him, to make certain amendments to his minutes, which are shewn to the Court, by affidavit, or otherwise, to be material omissions; or if he fail or refuse to make such amendments, then shew cause therefor, at the return of the rule.— If the cause shewn be deemed sufficient, the rule should be discharged,—if insufficient, a peremptory mandamus should be awarded. We find no. express authority for this practice, 'but ><think it results from the analogy of the law. If a judge refuses to seal a bill of exceptions; he may be compelled, by mandamus to do so,

In the case before us, the matters required to be entered upon his minutes, by the justice, to wit — “ the admission'of evidence, objected to, and the rejection of evidence offered, the reason of such admission or rejection,” &c., are usually, in the higher courts, made part of the record, by bill of exceptions: here, the justice is required, without the agency of the parties, or their counsel, to record them himself. The analogy being so just, we think similar means should be allowed, to enforce a performance of duty, in either case — the more especially to prevent a failure of justice.^*

In New York, it is a frequent practice, where cases are brought up, by certiorari, from a justice of the peace, if his return is- objectionable, to award a rule upon the justice, to amend his return — Rudd vs Baker;^† Wilson vs Fenner;^‡ Simpson vs Carter.^§

The Circuit court erred, in receiving the paper, purporting to be a transcript, as a return to the alias certiorari. The mandate of the writ required that the transcript to be sent up, should be certified by the justice, and returned together with the writ. It was not attached to the writ, nor was it certified; but was merely found in the papers of the case : nor was it even shewn, that it was intended as a return. There was, then, no authority for receiving it as such.

It is further objected, that the judgment rendered by the justice of the peace, as well as that of the Circuit court, against the guardian ad litem, for costs, is erroneous.

Ail infant plaintiff is not liable for costs, — his pro-ehien ami, who voluntarily represents him, is chargeable; but an infant defendant, where he waives his plea of infancy, or fails to sustain it, or if it be not available in law, always pays costs.^*

Where an infant is sued for a tort, his minority will not avail him; yet it is the duty of the court, in such case, to assign him a guardian, to conduct his defence; and the power to make such an appointment, belongs to all courts, however limited their jurisdiction.^† Some friend of the infant defendant is most usually appointed to that office — yet, if there be no friend designated, or none esteemed of sufficient discretion, it is competent to appoint some ministerial officer of the court.

In Muir’s Executors vs Stuart’s Representatives,^‡ it was determined to be the correct practice, by analogy to that prevailing in the English Chancery, to appoint the clerk and master in equity, a guardian, ad litem, to defend a suit brought there against infant defendants. The court also remarked, that the clerk and master can not refuse this trust, but is bound to perform the duty it imposes, which can not result in injury to himself. This declaration implies that he is not liable for costs — for if he could be charged, he might be injured.

The time ground of distinction between the proclvien ami of an infant plaintiff, and the guardian of an infant defendant, we take to be this: the one voluntarily comes into court, and makes himself a party of record, while the other, without his own agency^ is made such, by the court. This distinction does not-always hold good, in point of fact, for the guardian, ad litem, sometimes solicits the appointment; yet the court, in some instances, exerts a coercive authority, and as in these, he is not chargeable with costs, for the sake of uniformity, he is held not to be liable in any case. The judgment for costs, against an improper person, does not authorise an entire reversal of the judgment, but a mere correction by reversing and rendering, if there be no other error upon the record; and as this was the only one pointed out in the Circuit court, that court could not have reversed and remanded the case; but should merely have corrected it, in the manner we have indicated.

In the refusal of the Circuit court, to award a plu-ries certiorari, as moved by the plaintiffs, there is no error. It was a motion which addressed itself to the discretion of the court, and the propriety of granting it, must have depended upon circumstances, of which a revising court could not well be placed in possession.

It was no available objection, that the complaint was made to, and the process issued by one justice, while the case was tried before another. The powers of each were co-extensive.^* But even if this objection had been allowable, it was waived, by the failure to make it at the trial.

This view disposes of the case, and the result is, that the judgment must be reversed, and the cause remanded.

* Alabama Reports, 98.

† 2 Stew. Rep. 496.

* For the office of a mandamus, and cases in which it is a proper remedy, vide Willcock on Municipal.Corporations, 354 — 14 Law Lib.

† 7 Johns. Rep. 548.

‡ 3 ib. 439,

§ 5 Ib. 330.

* Reeves’s Domestic Rel. 267.

† 8 Johns. Rep. 418.

‡ 1 Murphey’s Rep. 440.

* 4 Stewart & Porter, 125.