Willard v. Whitney , 49 Me. 235 ( 1860 )

The opinion of the Court was drawn up by

Appleton, J.

The records of the Court show the proceedings in relation to* a suit from its entry to its final termination. The statements therein contained must be regarded as true. They are- not subject to explanation or contradiction ah extra. If facts are erroneously inserted in the record, upon sufficient proof, the Court may order their erasure. If material and existing facts, which should appear, are omitted in the narration of proceedings, the Court may order their insertion. The record is a narration of the proceedings in Court, and if, through neglect, mistake, or fraud, errors occur; upon the suggestion of others, or upon its own mere motion, the Court may rightfully order that it be so altered as to conform to the facts. When the record is once made up, it is conclusive upon all parties, until altered or set aside by a Court of competent jurisdiction. Balch v. Shaw, 7 Cush., 282.

The docket entries are minutes made during the progress of a cause, from which the record is made up. They are regarded as the record of the Court until the record is extended. Reed v. Sutton, 2 Cush., 115. But the docket entries are not receivable to disprove or contradict what the record asserts. Neither the former minutes of the clerk nor the statements of others as to previously existing but now erased minutes, are to be received in contradiction of the extended record.

If the facts be as the defendant asserts, ho should have moved the Court to order the record to be so amended as to conform thereto, and, upon proper proof, the Court would have ordered it done. It does not appear that any such motion was made or that the facts, as alleged, were proved to exist to the satisfaction of the Court, so that the Court, upon its own motion, should have ordered the amendment made. If the facts alleged were made to appear of record, then the defendant might well have invoked them in the defence.

The minutes upon the docket are erased. The clerk, by whom they were made and erased, lias not been called to explain why made or erased. "Every entry is a statement of the act of the Court,” says Shaw, C. J., in Reed v. Sutton, 2 Cush., 115, "and must be presumed to be made by its direction, either by a particular order for that entry, or by a general order, or by a general and recognized practice, which pre-supposes such an order. We must therefore presume the, several entries on the docket under this action were made by the clerk by proper authority. Taking the abbreviated entry, for "continued out of the Commonwealth,” the same evidence which proves the entry once rightfully made, proves the cancellation and revocation of it, and then it stands as if no such entry had been made.” But the evidence of docket entries erased, howevei properly admissible with other proof, as the basis of an amendment of the record, cannot be received for the purpose of its contradiction.

In the case of Leighton v. Reed, 28 Maine, 87, it appeared of record that the action had been entered defaulted, and that execution had issued, and that, at the next term, "on motion of the plaintiff, it was ordered by the Court, that the judgment and execution aforesaid be annulled and that the execution aforesaid be returned into the Clerk’s office, and the action was, thereupon, brought forward” to that term. It was there held that the attachment was dissolved. But in the case at bar the record discloses no such facts. It is the usual record of an action which has been entered and continued from term to term and then defaulted.

If the facts be, as alleged by the counsel for the defendant, they should have been set forth in the record. No action should ever be brought forward without a saving of the just rights of third persons, and this can only be done by stating in the record the facts in reference to the default, the issuing of the execution, the bringing forward the action on motion, the taking off the default and the cancellation of the execution. When this is done, the rights of all receive the protection of the law.

It is urged in defence, that the judgment, Willard v. McMullen, was fraudulently rendered for too large a sum, and that such fraud is an excuse for the defendants’ not keeping the property attached, and for not selling the same on the execution which issued in that suit.

The law is well settled that a creditor may impeach for fraud a judgment eollusively and fraudulently rendered against the debtor. So too, the officer while representing creditors, may, by setting up fraud in a judgment, defeat the prior rights of the fraudulent creditor on such judgment. In Clark v. Foxcroft, 6 Greenl., 296, it was held- in a suit against the sheriff for not levying an execution, that it was a good defence that the plaintiff’s judgment was fraudulent, the sheriff first proving that he represents a creditor of the judgment debtor, by showing a legal precept in his hands. In Fairfield v. Baldwin, 12 Pick., 388, the right of an officer to invoke a subsequent attachment, to defeat a prior fraudulent judgment, was affirmed. In Paine v. Jackson, 6 Mass., 242, the sheriff being indemnified by a subsequent attaching creditor was permitted to defeat a prior judgment by proof of its fraud. Creditors, whose rights may be injuriously affected by a fraudulent judgment, may impeach it, and they may do this through the intervention of the sheriff by whom their rights are represented.

The judgment recovered by the plaintiff against McMullen is binding upon the parties till reversed. Even if. rendered for too lai’ge a sum, it is a valid judgment till its reversal. Smith v. Keen, 26 Maine, 411.

The sheriff, ixx the present case, holds the property attached, to be applied to the satisfaction of such judgment as the plaintiff may recover, or, if lxe fail ixx his suit, or neglect, if successful, to place his execution seasonably ixx the officer’s haxxds, to be restored to the debtor. The debtor cannot collaterally coxxtest the good faith of the judgment against him. Neither can he in the name of the sheriff. The creditors, if any there be, of the judgment debtor do xxot desire to. The sheriff is xxot a creditor nor the representative of creditors. The defendant shows no defence for not' keeping the property attached to respond to the judgmeixt rendered ixx the suit upon which the attachment was made. If there was a fraud upon the debtor, he has his appropriate remedy. But the officer cannot legally volunteer in the defence of his rights, or for his protection.

The rule as to damages was correct. The estimated value of the goods in the officer’s receipt, and as stated in the return, must, in fine absence of all contradictory proof, be deemed satisfactory evidence on this subject.

The attachment was not dissolved by the death of one of the defendants. Bowman v. Stark, 6 N. H., 459. The issuing of a commission of insolvency must be shown to dissolve an attachment, and of that no proof was offered. Maxwell v. Pike, 2 Greenl., 8 ; Martin v. Abbott, 1 Greenl., 333. Upon the motion for a new tidal, upon the ground of newly discovered evidenice, no proof has been offered.

Exceptions and motion overruled.

Judgment oñ the verdict.

Tenney, C. J., Goodexow, Davis and Kent, JJ., concurred. — Cutting, J., concurred in the result.