Bean v. Ayers , 70 Me. 421 ( 1879 )

Peters, J.

This is an action by an officer upon an accountable receipt. The defense is, that no valid judgment was rendered in the original suit. To establish this defense, it is not enough to show that there were errors and irregularities of a merely formal character in the former proceedings. It must appear that the judgment rendered was utterly void. Brown v. Atwell, 31 Maine, 351. Drew v. Livermore, 40 Maine, 266. Thompson v. Smiley, 50 Maine, 67.

I. Are there any fatal deficiencies in the original writ ? None are pointed out to us that we can regard as anything more than merely formal and technical matters such as are cured by the judgment, even if they would have been open in the original cause to special demurrer.

II. "Was the officer’s return valid? He was directed in the writ [in rent) to attach pine, spruce, hemlock and hard wood logs of a certain mark. He omitted to take the pine and hard wood, but attached the others. He attached less and not more than he was directed to. This point fails.

III. Was the judgment valid as rendered by the court? This is a more important question. But the objection raised here has not foundation to rest upon. The order from the Jaw court was this : “Judgment for the plaintiff vs. the personal defendant and against the logs.” Against what logs ? The argument by the defendants is, that it may mean the logs declared against in the writ, rather than the logs attached upon the writ, not necessarily being the same logs. But what logs had the court been considering % What logs had been before the court and constructively in its possession ? The process was in rem. As in an action of replevin, the return of the officer becomes a part of the declaration, limiting its operation to the articles actually taken and attached. See State v. Howley, 65 Maine, 101, and cases cited. The logs attached were before the court, and the litigation related to them and nothing else. Can it be supposed that the court had been deliberately considering the right of the plaintiff to have judgment against logs that he had never attached ? What did the court mean by “the logs” ? Courts are in the habit of using abbreviations and short formulas to indicate what would require many more words to express in full. Suppose an action of "replevin is instituted against two vessels, one only being found and returned by the officer as attached, would the words “judgment for rotura,” sent down from the law court, be understood to apply to any other than the vessel attached ? The logs attached were in one sense a defendant. The mandate from tlie law court went against them as a defendant, describing them with the same certainty that it described the personal defendant.

IV. A valid judgment having been rendered, is the record of the judgment sufficient to establish the plaintiff’s claim %

It is immaterial in this case whether the record is defective or not, if it is by permission of court amended. The vital thing is the judgment. The record is only evidence of the judgment, and if erroneous, it fails truly to represent the judgment. For the purposes of this case, there was no need of any record, beyond the papers on file and the docket entries, which are a record of themselves. Willard v. Whitney, 49 Maine, 235. The only object of a more formal record is to avoid the danger of losing original papers and of mistaking, after a lapse of time, the meaning of brief docket entries which are sometimes obscure and difficult to understand. Garfield v. Bemis, 2 Allen, 445. A book of judgment records is to the clerk what a ledger is to a mercantile book-keeper. When the record is made up, however, it is not subject to explanation or contradiction by evidence outside of it. If there be error in it, it can onlj be corrected by the court. See cases supra; also Noyes v. Newmarch, 1 Allen, 51.

Why not correct an erroneous record, if the judgment be right ? Why should it not be made to tell the truth? It is but a form. The error is usually a clerical one. It is the result of an attempt of a clerk to obey the direction of the court, failing to do so. It would be strange if slips and inadvertencies did not occur in extending the records. The work cannot be done under the eyes of the judges. The law expects deficiencies and diminutions of the records, and provides (R. S., e. 79, § 10) that the court, as often at least as there is a change of clerk, shall cause the records to be examined, and when deficient shall “direct them to be immediately made or corrected.” It would be a misfortune if the corrections could not be made. It is contended that an amendment would work injustice in the present instance because the defendants are in the situation of bail or sureties. But the defendants are presumed to know what the judgment itself was and that it is valid. In legal intendment, they are presumed to know that if the clerk has made a mistake it can be and should be corrected. “It makes no difference that the amendment affects third persons; all amendments more or less affect third persons,” says Spenser, J., in Close v. Gillespey, 3 Johns. 526. Of course, there may be cases when it would not be in the furtherance of justice to allow an amendment. Hayford v. Everett, 68 Maine, 505. But the court may allow an amendment of a mistake committed by its recording officer, when such amendment will be in furtherance of justice, and when the party to be affected thereby will not be subjected to any loss or inconvenience other than what he would hav,e been subjected to had the record been originally in proper form. Caldwell v. Blake, 69 Maine, 458. In this view our decisions all concur. See cases supra. Hall v. Williams, 10 Maine, 286. Glidden v. Philbrick, 56 Maine, 222. Knight v. Taylor, 67 Maine, 591. A judgment is one thing; the record of a judgment is another thing. The one is a judicial act; the other a clerical act only. In most of the cases cited by the defendants, the difficulty was in the judgment pronounced by the court.

We think it unnecessary to decide whether the record, as it stands, is deficient or not, as it may be made full and complete by amendment. The amendment last asked for will make it good. The subject matter of this suit has been five times before this, in different forms, presented upon questions of law to the court. We have carefully examined the elaborate and able brief of the defendants’ counsel, who has “kept the flag flying to the end,” but are unable to agree with his views. Interest reipubliem ut sit finis litium.

Amendment allowed.

Defendants defaulted.

Appleton,.0. J’., Barrow~s, Danforth, Virgin and Symonds, JJ., concurred.