In re Sheppard's Contested Election , 1875 Pa. LEXIS 51 ( 1875 )

Chief Justice Aatraw

delivered the opinion of the court,

The application to this case of the principles governing the controversies between individuals who are affected by their own acts, is a source of error. Anological reasoning misleads, when true analogy is wanting. The proper character of this case must be stated, in order to determine it correctly. It was a contested election, a proceeding to redress a public wrong. Under the Act of 3d May 1850, contested elections for district attorney are to be decided in the manner provided for contesting the election of county officers: 1 Bright. Dig. 490. The Act of 2d July 1839 gives jurisdiction to the Courts of Quarter Sessions to “ hear and determine” all cases in which the election of any county or township officer' may be contested: 1 Bright. Dig. 572. The proceeding is on the petition of at least twenty qualified voters, complaining of an undue election or a false return. The petition in this case will be found in 15 P. F. Smith 22. It sets forth various frauds and illegal practices, alleged to be done with intent to hold an undue election, and to prevent an honest expression of the popular will at the election. In the opinion on page 29, it is said : “ The contest of an election is a remedy given to the people by petition for redress, when their suffrages have been thwarted by fraud or mistake. The instituted tribunal is the Court of Common Pleas, or Quarter Sessions, as the case may be. By the Acts of July 2d 1839 and February 3d 1854 the court is to proceed upon the merits of the complaint, and determine finally concerning the same according to the laws of this Commonwealth. No bill of exception is given to its decisions, nor appeal allowed, and its decisions are final. Consequently the Supreme Court has no jurisdiction over the subject.”

The Supreme Court thus having no power to review the merits, it can only, under its general power to supervise the proceedings of inferior tribunals, bring up the record for this special purpose. The power to correct errors in the judgment in this case belongs to the Quarter Sessions alone. To it is the cause of the people committed, and it alone can determine whether the popular will has been defeated by fraud or unjust practices.

Now, it is evident that when this court brought up the record of the Quarter Sessions by certiorari, it was for no purpose of correcting the findings or decree, and when it affirmed that finding or decree, it did not confirm it on the merits, for the plain reason it had no power to inquire into them. It simply affirmed that the Quarter Sessions had proceeded in due course of law. The duty of determining who was the legally elected district attorney demanded a truthful and faithful performance of this function, by the only lawful tribunal, and if it made a mistake by which the will of the people was actually falsified, instead of being ascertained, as the law required, this very duty demanded that the court should correct its own mistake in due time.

It is well settled that elections of the people should not he defeated by mere informality, and hence the law declared that the court “ should proceed upon the merits of the complainant.” This being the peculiar province of the Quarter Sessions, if it refused to correct its own palpable mistakes of calculation, which defeated the popular will, it would violate the very spirit and intent of the law which required it to ascertain the merits. Now what were the mistakes the court below had made? It had, by mere accident omitted to credit Mr. Sheppard with thirty-six votes of naturalized citizens which it had allowed to be legal. It had also made the mistake of deducting the purged votes from the majority of Mr. Sheppard, instead of deducting them from the whole poll before the majority was struck. Correcting these errors of calculation, Mr. Sheppard was actually elected as well as returned.

The duty of correction is admitted, but it is said it must be done while the record is in the breast of the court and therefore before the end of the term. This is the conceded rule; but does it apply to this case ? Clearly not: it is a case of suspended power only. The application was made during the term and while the record was yet in the breast of the court, and capable of correction. The court was advised of its mistakes, and entertained the application by receiving and permitting it to be filed. But its hands were then tied, its power to act suspended by the mandate of a superior court, to send up its record for alleged errors of procedure. It then could proceed no further, without disrespect to the superior tribunal. Here was the clear distinction. It was but a,n involuntary suspension of its undoubted power, not an extinguishment. The cause was not removed by an appeal, which ended its inquiry into the merits. The superior court acquired no jurisdiction over the merits, and therefore its writ could not deprive the inferior court of its rightful power to correct its own mistakes. Eor the .same reason the decree of the superior court, which it is said ratified and affirmed the false finding of the inferior court, did not affirm its falsehood. It could neither inquire into the merits of the petition for the correcting of mistakes nor strike them off, because they were received and filed in time.

There was, therefore, but a suspension of the power of correction in the Quarter Sessions, which was resumed when its record was returned. The term had passed only in point of time, not of judicial cognisance. It was not an attempt to correct an error of judgment after it had passed finally into the record. It was no re-judgment of the merits, when judgment had gone by. Such attempts are clearly illegal, as shown in the case of the Commonwealth v. Maloy, 7 P. F. Smith 291, and the error was not saved in that case by the illegal custom of entering immediately a rule to show cause why the sentence should not be modified or set aside» Under such a practice, no judgment could ever be final. But when a rightful petition for the correction of a mistake is received, on what principle of sound reasoning does the removal of the record by a higher authority for another and a rightful purpose, merge the pending petition for ever, and drive justice from her seat? It is only by false reasoning and ill-fitting analogies such a conclusion can be reached. It is said the suspension was Mr. Sheppard’s own act and he is estopped. True, it was his act, and it was his right also. He believed the proceeding which unseated him to be irregular. He failed, but his mistake did not oust the right of the people to have their own officer elected by them. Their right to have the merits of the election truthfully declared by the court was not barred by the suspension caused by his writ, from an appeal to the only tribunal having power to correct the mistake; they were not estopped by his act. The power of the court, though first moved by his petition, was not arrested in its motion because he failed. ' The court itself, as the chosen tribunal of the people, was bound to correct its errors when made known to them, in any way. It is a false analogy to say he elected his remedy, and therefore the court cannot exercise its inherent power to do right. It is a false analogy to say that the public redress is to be determined by rules applicable only by a private controversy. It is a false analogy to liken this case to the attempt of a court to rejudge its judgment after the term was passed. This was no such attempt. Here was a manifest mistake of calculation shown by the notes of the judge.

As remarked by C. J. Lewis, there is a great difference between reversing a judgment and correcting a clerical mistake in entering it: Smith v. Hood, 1 Casey 220. “It is doubtless true (remarks Judge Kennedy) that after the end of the term in which the court has rendered judgment upon a case stated on a general or special verdict from which an appeal may be taken by writ of error, or otherwise, it cannot alter or change it with a view to correct what the court upon further reflection may consider an error therein, and yet it would be going too far to say that such court may not afterwards and before any proceeding has been had upon the judgment, correct a mere mistake that has arisen in entering it differently from what was intended and perhaps directed:” Stephens v. Cowan, 6 Watts 513. And said Judge Tilghman, one of the safest of judges: “ But although it had not been during the term, it would not follow that the court had exceeded its power, for amendments have been allowed, not only after the term, but even after error brought:” Ordroneaux v. Prady, 6 S. & R. 511. The same excellent judge said also, in Bailey v. Musgrave, 2 S. & R. 220: “Where the object of the amendment is to do justice, courts are vested with extensive powers, not only by statute, but by the common law.”

Judge Yeates remarked in the same case: “ The strictness which formerly obtained in the granting of amendments, is said in our books to be almost entirely eradicated.” Still later, Chief Justice Gribson has said: “Not only has every court the power, but it is its duty to amend a clerical error, which stands in the way of justice:” Owen v. Simpson, 3 Watts 88.

The whole system of amendments is but an exercise of the power of correction to reach substantial justice. It is the every day practice of this court to disregard formal errors or mistakes that do no injustice. The end is the same that justice be not put to shame by her own ministers. Thé books are full of corrections, and the legislature has expanded the power from time to time.

. Names may be altered, parties added or struck out, the forms of action may be changed, two judgments may stand where only one stood before, the bar of death is removed from estates in joint contracts, and in some torts. Even the traditional sacredness of criminal procedure has been invaded by the legislative command, and indictments may be amended in certain respects which before were forbidden. And it may well be asked, why should not those be trusted to correct their own mere mistakes, who are intrusted with the greater power to decide the merits ?

This beneficial power may be illustrated by a few cases found in the books. Eight years after judgment, and after the defendant's death, the court permitted amendment by entering judgment nuna pro tuno: Murray v. Cooper, 6 S. & R. 126. In Ordroneaux v. Prady, supra, a plaintiff was permitted to amend his declaration after judgment by altering the time of the assumption. See also Bailey v. Musgrave, supra. In Stephens v. Cowan, 6 Watts 511, Judge Young, after the court rose in Indiana county, by letter from Ebensburg, stating that he had entered judgment by mistake-for the plaintiff, directed the prothonotary to “ set the error right by entering judgment for defendants.” On error this was maintained. After a lapse of forty years the court permitted a venditioni ex-ponas to be amended to include an executory devise levied on, but not recited in the venditioni exponas : De Haas v. Brown, 2 Barr 335. On the trial of an ejectment, under sheriff’s deed, an amendment of the venditioni exponas was permitted, by inserting the name of a defendant from the praecipe, and the sheriff’s sale thus passed the title: Sickler v. Overton, 3 Barr 325. A judgment entered by. mistake upon a warrant of attorney for a less amount than the obligation called for, was amended after execution executed, and an alias awarded to collect the balance Smith v. Wood & Co., supra. An omission in a levari facias of the command to levy the debt, was permitted after a sheriff’s sale, and on writ of error the amendment was held to be good: Peddle v. Hollinshead, 9 S. & R. 277. A writ of fi. fa. on which land was levied and sold, was in its entire body made out in a different case, and only the endorsement was right, and it was held to be amendable and the title passed: Owen v. Simpson, supra. In Fitzgerald v. Stewart, 3 P. F. Smith 343, a verdict for damages in slander was rendered for plaintiff and a motion for a new trial and in arrest of judgment entered. The plaintiff afterwards died, and her death was suggested, and a rule was entered to show cause why the writ and action should not abate. After several terms the rules were discharged and a judgment entered nunc pro tunc as of the term of the verdict when the plaintiff was alive. This action of the court was sustained. Thus when the plaintiff’s right of recovery was actually gone, in point of time, the power of the court was exerted through the legal fiction of a nunc pro tunc to prevent a failure of the verdict. In Ullery v. Clark, 6 Harris 148, we have an illustration of the difference between the correction of a mistake and an alteration of the judgment itself. The language of Judge Kennedy, in Stephens v. Cowan, was adopted, and it was’held that a judgment without costs, could not, two years afterwards, be corrected to stand as a judgment with costs. The question of costs was one of right and the court could not correct its error of judgment by a subsequent order. This is the true distinction. But a court powerless to correct its mere mistake of calculation, or the misprisions of its officer would be stripped of half its power to perform its true functions.

Upon the whole, we can discover in this record no excessive exercise of power by the court below which demands correction, especially at this late day, when the term of office has expired and the people have no contest and no cause for redress.

The proceedings are therefore affirmed.