Wheeler v. Scott , 3 Wis. 362 ( 1854 )

By the Cou/rt,

Smith, J.

We think it is our duty to dismiss this writ of error. We must insist thaf the records of the County and Circuit Courts shall conform in some degree to established precedents. This record, or, to speak more appropriately, this mass of papers affixed the one to the other, with the view that, together, they should pass for a record, is such a departure from the prescribed forms, that to countenance it would be, to give license to irregularities of the wildest kind. The clerks of the County Court are also clerks of the Circuit Court, and their exemplifications should be as regular from the one as from the other. Though the clerks of these courts may not have been professionally educated, yet it is the duty of the attorneys to see that proper entries are made and correct transcripts sent up.

Should we disregard all irregularities, and admit such papers as records, the result would be, that in. dulgence wrould seem to justify license, and all precision would be sacrificed and lost.

There appears in this record, no judgment. There is no order of the court that the one party or the other recover. One entry gives the following information, after entitling the cause: “ Judgment rendered for the plaintiff in the above entitled suit at the above named term, by the court, for the sum of seventy-eight 37-100 dollars damages and Ms costs against the said defendant, and Warren Gilbert, Ms surety on motion.”

Dixon & Prentiss, Attorneys for Plaintiff.

TMs is no judgment of the court. It is uncertain as to what idea is intended to be conveyed, but a fair piesumption would be, that Messrs. Dixon & Prentiss on that day filed a written motion for judgment, and that the court may have awarded it. But there is no evidence of the fact. No action of the court is recorded. The clerk merely tells us that judgment was rendered, but he has not recorded any judgment, or proceeding of the court as such.

In a subsequent place is the following, after the entitling of the cause: “Third day of the term, cause submitted and tried by the court. Judgment for plaintiff for seventy-eight dollars, thirty cents, November 9th, 1853.”

Immediately afterwards, after entitling the cause, is the following: “ November 10. On motion of plaintiff’s attorneys, judgment rendered against sureties in the appeal bond, with costs.”

A. W Dblany, (JlerT&.

Then follows the certificate of the clerk of the court in the usual form. We cannot reconcile the acceptance of this pretended record with our sense of duty. The papers show no judgment, and whatever is attempted to be set out, is done so without regard to form or order. It is an easy matter for those who are elected to the office of clerk of the Circuit Court, to inform themselves in regard to the manner of keeping and exemplifying the records of their respective courts.

A judgment of the court is not merely a casual matter, which, may he dashed on paper to serve as a mere remembrancer for the clerk, but it is a substantial proceeding, and must appear as the action of the conrt, as it really is, and not the mere written assertion of the clerk that the court did some certain thing.

Surely it cannot be necessary for us to give prescribed forms of record. The professional education of the attorneys in causes, if not the pride and ambition of clerks, ought to secure to this court, a clear, palpable and formal record, not of the action of the clerk, or his memory thereof, but of the action of the court of which he is the recording officer. It should appear that the court speaks, not merely a certificate of the clerk or his memory of the transaction. He should know that through his record, attested by his hand, and the seal of his court, it is the court that speaks, and not the certificate of the clerk that the court did speak and of what it pronounced.

. We take this occasion to make these remarks in this case, not because it is solitary in the defect of the record, but because the papers returned absolutely preclude any further proceedings, and to inform the profession that we must insist upon fair, formal and competent records from the inferior courts.

Here, in these papers, the court does not order or adjudge that the plaintiff do recover, or that the defendant go hence without day, but the clerk merely says that “judgment was rendered, &c.” in favor of the plaintiff. It is the saying of the clerk, and not the consideration of the court. Such looseness is not permissible in exemplifications of the records of courts. The dismissal of the writ of error will not bar another, and when the party shall bring up a final judgment, properly authenticated, the questions presented by the briefs of counsel, will be considered,

fBut there is another question in this case, which perhaps it may be well for us to consider at this time, as it may save the parties expense in the further litigation of this case in its present form of action. The action is trover. The cause was commenced by warrant on which the defendant was arrested. He objected to the proceeding at the first opportunity. The affidavit does not set out a cause of action in trover, nor is it in conformity with the statute which prescribes the requisites of an affidavit for a warrant for the arrest of defendant. We do not wish to send this case back with an intimation that even a record in proper form would sustain the proceedings of the plaintiff below He has mistaken his remedy, and he may as well be set right now as at any future time. His affidavit does not set out a cause of action in tro-ver, and under the present aspect of his case it is obvious that he can never recover in that form of action.

It would not, perhaps, be proper for us to go further in intimating the proper course or rights of the parties, but we leave them to proceed as they shall be advised. This writ of error is dismissed.