Woodman v. Inhabitants of Somerset , 37 Me. 29 ( 1854 )

Shepley, C. J.

— The action is debt upon a judgment of the Court of County Commissioners rendered in the month of March, 1838. The suit was commenced on July 18,1851. The declaration contains four counts, the last of which is assumpsit. The pleas are nul tiel record, nil debet, and the statute of limitations. The first concludes with a verification, which is joined by a similiter without any replication. On the second an issue to the country is joined. To the third there is a demurrer and joinder.

If the case may be decided upon the third plea, it will not be necessary to notice the defects in the declaration and pleadings.

The statute of limitations, c. 146, § 1, requires that “ all actions upon judgments rendered in any court not being a court of record, except justices of the peace, in this State,” shall be commenced within six years next after the cause of action shall accrue.

If upon the facts reported, any action has accrued to the plaintiff, it did so more than sis years before the commencement of this suit. Although the cause of action may have accrued before they were in force, the provisions of the Revised Statutes are applicable to it. Crehore v. Mason, 23 Maine, 413.

The rights of the parties may depend upon a determination, that the Court of County Commissioners is or is not a court of record.

Whether a court be a court of record, does not depend upon the fact, that it does or does not keep a record of its proceedings, or that it is or is not required by law to do so.

All inferior courts, not being courts of record, cause their proceedings and judgments to be recorded, or should do so. The distinction between courts of record and courts not of record, is recognized in the statute. It is not a formal and technical one only, but most important rights and practical results arise out of it.

After final judgment in a court of record, proceeding according to the course of the common law, the only remedy for a correction of its errors is a writ of error. When it is not a court of record, or does not proceed according to the course of the common law, a writ of error will not lie. The remedy is by writ of certiorari. 29 Maine, 288; 15 Pick. 234. A writ of error is one of right, while a writ of certiorari is not. 8 Greenl. 292.

When the judgment of an inferior court is reversed upon error brought, the court of errors should render such judgment as the inferior court ought to have rendered. 1 Salk. 401; 2 Saund. 256; Com. Dig. Pl. 3, B. 20.

Upon a writ of certiorari, the Court can only quash the proceedings. It cannot render such judgment as the inferior court ought to have rendered. Drown v. Stimpson, 2 Mass. 445; Commonwealth v. Bluehill Turnpike, 5 Mass. 423; Hopkinton v. Smith, 15 N. H. 152.

If the Court of County Commissioners were to be considered a court of record, proceeding according to the course of the common law, a party aggrieved would of right be entitled to a writ of error, for the correction of its proceedings ; and it would' become the duty of this court upon a reversal of any of its judgments, to render such judgment as it ought to have rendered. This would subject all its proceedings to a rigid scrutiny in form and substance, and bring many of its proceedings and judgments before this Court for revision and adjudication anew. If a writ of certiorari only can be maintained, on account of its not being a court of record, this Court having a judicial discretion may refuse it, and allow the proceedings, if informal or defective, to remain undisturbed, unless justice requires an interference; and in such case its jurisdiction will not be assumed, but it will be left to commence its proceedings de novo, when it judges it to be expedient to do so.

A court of record is one, which has jurisdiction to fine or imprison, or one having jurisdiction of civil cases above forty shillings, and proceeding according to the course of the common law. 1 Inst. 117, b, 260, a; Groenvelt v. Barwell, 1 Salk. 144; S. C. 1 Ld. Ray. 467; Same v. College of Physicians, 12 Mod. 388; 2 Saund. 101, a; Viner’s Ab. title Court, I.

It is insisted that the Courts of Sessions were courts of record, and their former jurisdiction having been conferred upon the Courts of County Commissioners, that those courts thereby became courts of record.

Courts of G-eneral Sessions of the Peace were established in each county in the Province of Massachusetts Bay, by the Act of 11 Will. 3, c. 1. These were superseded in that State by an Act passed on July 3, 1782, establishing similar courts. These courts were attended by a grand jury, and they had jurisdiction to punish offences by fine or imprisonment, and were therefore courts of record. Although powers were conferred upon them respecting highways, and other business in them respective counties, requiring proceedings not according to the course of the common law, they were not thereby deprived of the character of courts of record..

By an Act passed on March 9, 1804, these courts were deprived of all their- criminal jurisdiction, which was conferred upon the Courts of Common Pleas, and the Courts of Sessions had jurisdiction thereafter, respecting highways, and the business of their respective counties, and no other; and they ceased to be courts of record. Those courts were superseded in this State by the establishment of courts of sessions, having a similar jurisdiction, and without any civil or criminal "jurisdiction at common law. Statutes of 1821, c. 73. * These were not courts of record. They were abolished and new courts of sessions, having similar jurisdiction, were established, by an act approved on February 25, 1825. These were abolished and Courts of County Commissioners were established by an Act, approved on March 10, 1831, having similar jurisdiction. These, with certain modifications have been continued to the present time, without any jurisdiction in civil or criminal cases, in which proceedings according to the course of the common law were required, and •without any jurisdiction to fine or imprison. The judgment on which this action is founded, not being the judgment of a court of record, the third plea is adjudged to be good.

Judgment for the defendants.

Howard, Rice, Hathaway and Cutting, J. J., concurred.