Leathers v. Cooley , 49 Me. 337 ( 1860 )

The opinion concurred in by a majority of the Justices was drawn up by

Mat, J.

The objection urged in defence to the plaintiff’s right to recover, is, that the recognizance upon which he has declared was never recorded in the appellate Court, and that the record does not show that judgment had been rendered in the action wherein it was taken, prior to the commencement of this suit. The only record evidence of the recognizance, and of the rendition of judgment, consists in certain entries found upon the docket of the appellate Court, and upon the back of the recognizance, from which it appears that judgment was in fact rendered and the recognizance filed in that Court before the bringing of this suit. It further appears that the judgment had not in fact been extended upon the record, because the writ and papers in the case had not been furnished. The entries upon the docket appear upon their face to have been made at the September term, 1858.

The rule is now well established that the docket is the record until the record is fully extended, and the same rules of presumed verity apply to it as to the record. Pruden v. Alden, 23 Pick., 184. The entries thereon are presumed to have been made by the clerk under the direction and authority of the Court, and this presumption cannot be controlled by the testimony of the clerk or the Judge. Read v. Sutton, 2 Cush., 115; Longley & al. v. Vose, 27 Maine, 179. The entries upon the docket sufficiently show that judgment had been entered up before this suit was brought, and the testimony of the clerk, which was offered in defence, to show that such was not the fact, having been seasonably objected to, was wholly inadmissible.

The objection that the recognizance was not in fact entered at large upon the record is alike unavailing. It is sufficient that it was returned to and placed upon the files of the Court. The minute made by the clerk upon the back of it, as well as the direct testimony in the case, .shows that this was done before suit brought. This was held to be sufficient in the case of Paul v. Newell, 6 Maine, 239, where the recognizance was taken in the Court of Common Pleas. In the case also of Benedict v. Gutting, 13 Met., 181, where the recognizance was taken, as in the present case, before a justice of the peace, and not returned to the appellate court until after final judgment, and then not extended upon the record, it was held that an action after-wards brought upon it might be maintained, because the recognizance itself, being put upon the files of the Court, was a record within the meaning of the law, though not extended on the book of records, and showed upon its face the cause of the caption and the jurisdiction of the justice, and we cannot doubt that such is the law.

The cases of Bridge v. Ford, 4 Mass., 641, Dodge v. Kellock, 10 Maine, 266, and Libby v. Main, 11 Maine, 344, upon examination, are found not to be in conflict with the law as above stated. They were all cases of demurrer to the declaration, and each declaration, upon inspection, was found to contain no allegation of any record, and were therefore properly held to be insufficient. The question was not raised whether the return of the recognizance to the appellate Court, and placing it on file, would be a sufficient record, and there was no allegation or proof, in either case, that any such fact existed.

The suggestion of the counsel in defence, that there could not have been any judgment lawfully made up before the bringing of the suit, because the party prevailing had not filed the papers in the case, as required by the 35th rule of this Court, is based upon evidence tending to contradict the record,' and therefore not admissible, and comes with an ill grace from the defendant, whose duty it was to put the papers on file; and the judgment having in fact been made up, as appears by the docket, which is the only record, the Court will not receive parol evidence of any fact tending to show that it was not made up in accordance with the rule of the Court referred to. The defendant is estopped by the record as it is. He ought not to bo permitted to gain advantage, or inflict injury, by his own neglect.

Exceptions sustained. — Nonsuit set aside.

Rice, Goodenow, Davis and Kent, JJ., concurred.