Eastman v. Harteau , 12 Wis. 267 ( 1860 )

By the Court,

DixoN, C. J.

We have been strongly urged to overrule the former decision of this court in this case, as to the effect of the statute of Michigan in dispensing with the necessity of a scire facias in order to give any validity to the execution sale under which the respondent claims title. But whatever might be the opinion of the court as now constituted, upon that question, were it for the first time presented, we are not inclined to re-examine the decision already made, upon which there was a motion for re-hearing argued and overruled. The question arose under an old statute no longer in force, and is not likely to arise again. And such being .the case, we do not’ think the occasion justifies us in re-examining for the purposes of this case only, a question which has been once solemnly decided by the court, and that decision adhered to upon a motion for re-argument.

This leaves the single question, whether the record of this judgment was properly admitted in evidence on the last trial. The book was found in the proper custody for the records of the court. It purported to be such record, and the only ground of objection seems to be that it was not authenticated by the signature of the judge or clerk. It is true there was a provision of the statute in force at the time, requiring the judge to sign the record at the end of each day’s ¡proceedings. But there is fair reason for saying that this provision was directory, and that it was not intended that its non-observance should invalidate the judgments. We have been at some pains to inform ourselves as to the practice from those familiar with it at that early day, and among others from one of the judges of that district, and we learn that this provision of the statute was then regarded as directory, and that owing .to the inability of the clerk to complete the record of each, day’s proceedings in time, its observance was often ne-glectecL Under tírese circumstances we must bold tire record sufficient. In addition to tbe authorities cited by tbe respondent’s counsel, tbe following may be referred to in support of its admissibility, Boston vs. Weymouth, 4 Cush., 542; Read vs. Sutton, 2 Cush., 115. In tbe latter case tbe docket entries, wbicb were not authenticated in any other manner than in this case, were held admissible as evidence and entitled to tbe same effect as a full record, tbe full record not •having been perfected at tbe time. The court said: “Tbe docket is tbe record until tbe record is fully extended, and tbe same rules of presumed verity apply to it as to tbe record. Every entry is a statement of tbe act of tbe court, 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 usage and practice, wbicb presupposes sucb order.”

Tbe judgment must be affirmed, witb costs.