Douglass v. Wickwire , 19 Conn. 489 ( 1849 )

Hinman, J.

The decision of the superior court as to the official character of the grand-juror, was clearly right. The public and third persons are not required to ascertain the legality of an officer’s election or appointment. It is enough, if the officer acts under colour of an election or an appointment, by the only body which has the power to make it. The right to the office can only be tried in a direct proceeding, to which the officer is a party, and not in this collateral way. This is too well settled to be any longer a debateable point any where. Plymouth v. Painter, 17 Conn. R. 585. 592. Monson v. Hunt, Id. 566. The People v. Stevens, 5 Hill, 616.

2. The rejection of the evidence offered to show an appearance before the justice, was equally correct. It is an elementary principle, that a record imports verity, and cannot be contradicted. With us, this doctrine applies to the records of justices of the peace, as well as to those of the higher courts. Fox v. Hoyt, 12 Conn. R. 491. And it extends to everything, which it is made the duty of the court to record, and is material. In the case of Potter v. Kingsbury, 4 Day, 98., it was held, that where it was the duty of the justice to take bail, if offered, he might call the party and his bail, if there was a neglect to appear; and then might make the proper entry of the default of appearance, and neglect to comply with the conditions of the recognizance, to be used as evidence of the fact, when a suit is brought on such recognizance. If then, the record of the defendant’s default, was properly made, by justice Gatlin, there would seem to be no doubt that it must, so long as it exists, be conclusive upon the defendant, and estop him from alleging or proving the contrary. Very many, and perhaps most, of our judgments in civil causes, are rendered upon the defendant’s default; and the record is the only evidence of the fact, and is conclusive. Is there any reason for its conclusiveness in civil suits, which will not also apply to criminal proceedings ? We know of none ; and none has been pointed out.

The case of Aldrich v. Kinney, 4 Conn. R. 380., has no r - , . . ™, , . , application to this point. I he record m that case, was tradicted, because it appeared, that the defendant had no legal notice of the suit; from which it followed, that the court had no jurisdiction of the cause. The want of jurisdiction may always be shown.

It was said, that the facts offered to be proved here, were more consistent with the record, than the facts proved in the case of Burgess v. Tweedy, 16 Conn. R. 40. But the court, in that case, distinctly recognized the principle, that a record cannot be contradicted. The court proceed throughout upon the idea, that the facts stated in the writ of error were consistent with the record — that they both stood well together. It is worthy of remark, also, that that was the case of a record of a party’s default ; and it was expressly said, in the reasons for that decision, that had the averment in the writ of error contradicted the record, the case would have been within the principle, that a record cannot be contradicted.

We are satisfied, that the rulings of the superior court .were correct, and do not advise a new trial.

’ In this opinion the other Judges concurred, except Waite, J., who was not present.

New trial not to be granted.