State ex rel. Nesbitt v. Logan , 33 Md. 1 ( 1870 )

Grason, J.,

delivered the opinion of the Court.

The question presented by the first bill of exceptions is, whether the several writs of summons set out in this record, were admissible, upon an issue joined, upon a rejoinder of nul tiel record, to prove the record. It was contended by the counsel for the appellees, that the first summons issued in the cause, differed from all those subsequently issued in this, that, whereas the first did not state the cause of action sued on, all the others did; and that it did not therefore appear upon their face that they had all been issued in the same cause. It was also urged, that as the first summons issued under the Act of 1856, ch. 112, and the first section of the first Article of the Code, provided that all suits and actions, pending at the time of its adoption, should be proceeded with to final determination, and judgment entered therein, as if the Code had not been adopted, the summonses subsequently issued would also have conformed to the requirements of the Act of 1856, if they had been intended to be renewals of the first summons; but as they were in conformity with the provisions of the Code, they could not be considered renewals in the original cause. We do not concur in these views. The parties, plaintiff and defendants, arc the same in all the summonses, and those, issued subsequently to the first, differed from it only in stating the cause of action and the amount claimed, so as to conform to the requirements of the 84th section of the 75th Article of the Code.

The 1st section of the 1st Article of the Code was intended to prevent suits and prosecutions, pending at the time of the adoption of the Code, from abating or being put an end to by its adoption. The mere change in the form of process, so as to. make it conform to the requirements of the Code, would not have the effect either of putting an end to the suit, which had been instituted prior to the adoption of the Code, or of making it a new and different action. "We think that it became necessary, after the adoption of the Code, that all renewals of process in cases then pending should conform to its requirements, and that a change in the form of the process in accordance therewith, furnishes no ground for the objection to its admissibility in evidence.

But it was also contended that the renewals of the writs of summons could only be proved by the record of the case, and that the renewals did not constitute such record. It is perfectly clear that all the proceedings in a cause, including the summons, returns, pleadings and all other proceedings, constitute the record, and are admissible to prove what has been done during the progress of the cause. Boteler & Belt vs. The State, use of Chew, 7 G. & J., 381; Phila., Wilm. and Balto. R. R. Co. vs. Howard, 13 Howard’s Reps., 331. The issue to be tried was whether there was or not such a record as was alleged in the pleading; and all the proceedings which had been had in the cause up to that time, were admissible in evidence upon it, and if it appeared from an inspection of them by the Court that the first summons had been issued on the third day of December, 1859, and had been returned by the sheriff to the succeeding term, and that regular renewals had taken place to each succeeding term thereafter, then the issue must have been found for the plaintiff. Hazlehurst vs. Morris, 28 Md., 75. The counsel for the appellees seem to have supposed that a record is nothing more nor less than a copy of the proceedings in a cause, certified under the hand of the clerk and the seal of the Court. But we have shown that all the proceedings in a cause constitute the record, and are admissible upon the plea of nul tiel record. A transcript of the record only becomes necessary when it is to be used in another Court than that in which the suit has been brought, and because the Court in which the proceedings have taken place will not part with the custody of its papers, and that the other Court may bo certified of the verity of the proceedings. But a transcript is never necessary in the Court in whieh the suit is brought, but the original papers are used as evidence.

The plaintiff below also made a motion to amend the docket entries in the case, so as to make them conform to its real facts and proceedings, coupled with an offer of them as evidence when so amended. This was refused by the Coxxrt below, and its refusal forms tlie ground of the second exception.

It was contended by the counsel for the appellees that, after the expiration of a term, the docket entries could not be altered or amended. To this proposition we cannot give our assent. Luring the progress of a cause, a Court has control of its proceedings therein, and not only has the right, but it is its duty, to have the entries of the proceedings correctly made. The clerk is but the hand of the Court in making the entries, and where mistakes or omissions occur it is its duty to correct and amend them, so as to mako them show what has actually been done in the canse. The 16th section of the 18th Article of the Code does not apply to any case which has not terminated by “trial, judgment, decree, agreement, non pros, or abatement,” and, therefore, the proceedings in the ease before us were not required to be entered by the clerk in a bound book, as it had not then terminated. Some of the docket entries set out in the record, arc, upon their face, defective, and others were alleged to be so, and it was clearly within the power and duty of the Court below, upon discovering such defects, by an examination of the docket entries themselves, as well as the papers and proceedings in the cause, to so amend them as to make them show what had actually been done during the progress of the cause. Prather vs. Manro, 11 G. & J., 261; Byrne vs. McPherson, Adm’r of Brien, 12 G. & J., 157. And it is the duty of the Court to correct clerical errors even in the original papers in a cause. McCoy vs. Boyle, 10 Md., 392. The docket entries should have been amended, upon the motion of the plaintiff below, and would then have been admissible upon the issue then before the Court.

What we have already said upon the first and second exceptions applies with equal force to the third, which was taken to the ruling of the Court below, that the writs of summons and docket entries offered together, did not constitute a record of the case then before the Court. We have shown that the docket entries should have been amended, upon the motion of the plaintiff, and after such amendment it was not incumbent on the plaintiff to produce any other record than the proceedings and docket entries, for they constituted .the only record which could have been produced.

The plaintiff then offered as evidence to the jury the writs of summons and docket entries, and they were objected to and ruled out by the Court, and this ruling forms the ground of the fourth exception. The second rejoinder of the defendant to the plaintiff’s fifth replication was in substance a rejoinder of nul tiel record, and amounted, in fact, to the same thing as the first rejoinder, and therefore the proceedings and docket entries could be offered to the Court alone as the record of the cause, and were not admissible as evidence to the jury. There was therefore no error in the ruling of the Court below as contained in the fourth exception.

As no notice was taken in the rejoinder of the second, third and fourth replications, and as there was a difference ' of opinion between the counsel of the respective parties as to what course the counsel of the defendants below should have taken in regard to them, and as the cause will have to bo remanded for a new trial, we deem it necessary to say that a replication, which asserts what is denied in the plea, in the very language of the plea, is bad. The plaintiff could have either joined issue upon the defendants’ pleas of limitation, and upon those issues given in evidence the record of the proceedings in the cause to show that the suit had been instituted in time, or he might have replied to all the pleas of limitation, as he did in his fifth replication, that being a proper and formal replication, in such case, to these pleas.

(Decided 5th March, 1870.)

The judgment of the Court below will be reversed and a new trial awarded.

Judgment reversed and

new trial awarded.