Citation Numbers： 69 Me. 555
Judges： Appleton, Barrows, Peters, Symonds, Virgin, Walton
Filed Date： 6/5/1879
Status： Precedential
Modified Date： 9/24/2021
This is a wilt of error to reverse a judgment rendered on a default.
To reverse a judgment for error in law, the error must be one apparent, upon the record. Kirby v. Wood, 16 Maine, 81. Conway F. Ins. Co. v. Sewall, 54 Maine, 352. If no error appears upon the record, none will be presumed. Peebles v. Rand, 43 N. H. 337.
Before a judgment will be reversed, the record, or a transcript of the record, must be produced, for, without the record or its transcript, the court cannot know there is an error or what it may be. It is the duty of the plainliff in error to furnish the record or its transcript. Rochester v. Roberts, 5 Foster, (N. H.) 495. The judgment must be brought before the court by the writ of error. Thompson v. Browne, 39 N. J. 2. Where the error is one of law, the- court can only act upon the record or its transcript. Starbird v. Eaton, 42 Maine, 569. The plaintiff must affirmatively show the error on which he relies. He must there
The plaintiff in error has furnished neither the record nor a transcript of the same, nor shown reason why it was not done.
In error of law nothing can be received to contradict the record. Paul v. Hussey, 35 Maine, 97. Wetmore v. Plant, 5 Conn. 541. Claggett v. Simes, 31 N. H. 22.
As the plaintiff in error has not furnished the court with the record, or a transcript of the record, we must assume it to have been in the usual form.
The original action was defaulted to be heard by the clerk, but by agreement of parties a hearing was had before D. M. Mort-land, Esq., after due notice to the parties, and judgment rendered for the amount fixed upon by the individual agreed upon to assess damages. A copy of the agreement of the parties, and of the amount found due, in accordance with which, as to the sum due, judgment was rendered, is made part of the agreed statement of facts ; but it is nowhere asserted or admitted that these facts are incorporated in, or made a part of, the record. It is for the plaintiff in error, if he would seek to take advantage of them, affirmatively to show that they are incorporated in the record; for, if not, and the agreement and decision are merely on file, they constitute no part of the record. Documents and records filed in a case form no part of the record unless incorporated in it. Valentine v. Norton, 30 Maine, 195. Kirby v. Wood, supra. Pierce v. Adams, 8 Mass. 383.
An irregularity in entering up judgment is not ground for error. Claggett v. Simes, 31 N. H. 23. Collins v. Walker, 55 N. H. 437. The remedy is for the party to move in the court where proceedings were had to have the irregularity corrected and the record amended accordingly.
If there was an error of computation, or in the amount, the mistake is one to be corrected by review. Starbird v. Eaton, 42 Maine, 265. Lowell v. Kelley, 48 Maine, 265. If damages were not formally assessed by the court or the jury, it should specially so appear of record, for the presumption of law arising from the record as usually made up is that they were legally
II. The judgment is sought to be reversed on account of an erroneous taxation of costs. If a mere error of taxation were to be deemed sufficient ground for the reversal of a judgment, the evils resulting from such a doctrine would be incalculable.
This question first arose in Field v. First Mass. Turnpike, 5 Mass. 389, upon a petition to correct an erroneous taxation of costs, — certain witnesses having been omitted to be taxed. The question was not argued, and there is a per curiam decision that the remedy for a mistaken taxation is by error, and the relief to be given will be by reversing the erroneous judgment and entering a right one. In Southworth v. Packard, 7 Mass. 95, the court refused to reverse a judgment because the items of the bill of cost did not appear. “ The objection to the bill of costs should have been made at the common pleas, when the report was made and the costs taxed.” In Jacobs v. Potter, 8 Cush. 236, it was held that a writ of error would not lie to correct a taxation of costs by the clerk, but that the remedy was by appeal. The same question arose in Day v. Berkshire Woolen Co., 1 Gray, 421, and the decision in Jacobs v. Potter was re-affirmed. It may be regarded as authoritatively settled in Massachusetts that an erroneous taxation of costs affords no ground for the reversal of judgment. In this state the question arose in Valentine v. Norton, 30 Maine, 195, when the court held that error might lie to correct an erroneous taxation of costs. If the error in this case is to be treated as an error in law, as no transcript of the record has been produced, there is no evidence that there is error in the record, and it is for the party alleging error to show its existence. If it be said that there is an error of fact in the taxation, it was decided in McArthur v. Starrett, 43 Maine, 345, that error would not lie for such erroneous taxation of costs.
The losing party has a right to be heard in costs, and to appeal to a judge if dissatified. Or he may move to have costs taxed in term time, and if the taxation is allowed by the justice presiding, he may except to such allowance. When the remedy for erroneous taxation can be heard by exceptions or appeal, error for its
It is thus seen that the writ of error is not maintainable upon the agreed statement of the parties without a copy-of the judgment sought to be reversed.
III. The record has, since the preceding opinion was prepared, been furnished, which shows the entry of the action leach v. Wood; that there was an appearance by counsel; that an account in set-off was duly filed ; that the action was continued from term to term to the March term of this court; that the defendant was defaulted; that the damages were to be assessed by the clerk; that then a written agreement was entered into that the damages were to be assessed by D. N. Mortland; that an assessment of damages was duly filed by said Mortland, and, “ therefore,” it was “ considered by the court that the said plaintiff recover against the said defendant the sum of thirty-nine dollars and seventy-three cents debt or damage and costs of suit taxed at thirty-seven dollars and thirty-six cents.” The judgment was for the debt assessed by the person agreed upon to assess damages.
The plaintiff had a right to have his damages assessed by a jury. Not claiming that right, the court might refer the matter to a master or assessor “ for informing the conscience of the court, and his doings, being approved and adopted by the court, become theirs.” Price v. Dearborn, supra. Begg v Whittier, 48. Maine, 314. Much more, then, may the parties agree upon an individual by whom damages, as in this ease, were to be assessed.
The record states by whom damages were assessed, and then proceeds : “ It is therefore considered by the court that the said plaintiff recover against the said defendant the sum of thirty-nine dollars and seventy-three cents debt or damage.” This is an express and full approval and adoption of the assessment of damages as made by the person agreed upon by the parties.
It appears by the report of Mr.'Mortland that he charged six dollars for assessing damages. It nowhere appears from the record that this sum was included in the costs as taxed. In Southworth v. Packard, 7 Mass. 95, the court, referring to the costs, say: “We must presume them to be the regular costs of this process.”
The alleged error as to costs, not being apparent of record, affords no ground for the reversal of the judgment, even had that been a cause, which it was not.
The parties agreed that the damages should be assessed by an assessor agreed upon. The costs before such assessor, as well as his reasonable fees, are equitably as well as legally to be taxed as a part of the costs in the suit. They are costs resulting from the agreement of the parties, and are as justly taxable as the costs of a reference or a trial. But, whether so taxable or not, the better
Writ denied.