Dorsey v. Merritt

Mr. Chief Justice Sharkey

delivered the opinion of the court.

The action was founded on a promissory note, Dorsey, the plaintiff in error, being the indorser. On the trial he took a bill of exceptions, on which the writ of error is founded.

A preliminary question is presented by two pleas in bar to the assignment of errors: first, the statute of limitations, that the writ of error was not sued out within three years after the rendition of judgment; and second, that a fi. fa. had been sued out on the judgment, which being levied, a forthcoming bond was given by-Vance, one of the makers of the note, which was returned forfeited, and constituted a statutory bar to a writ of error.

The first plea is not sustained by the record. The judgment was rendered on the 18th of May, 1838, and the writ of error was sued out on the 10th of May, 1841, so that three years had not elapsed.

There is a provision in the statutes, How. & Hut. Digest, 541, sec. 50, by which it is declared that no writ of error shall be granted in a. case where a forthcoming bond shall have been given and forfeited. In this case a bond was given by Vance, one of the defendants, as to whom the writ of error is barred, but Dorsey did not join in the bond, and thus the question is presented whether Dorsey is barred of his writ of error? Vance undoubtedly is, and the writ is in the name of all the defendants below. The rule is general and seems to be inflexible, that all- who were defendants must join in prosecuting a writ of error, and even if one be dead he must still be named in the writ and his death suggested, and although one defendant may have been outlawed, he must still be joined with the others in the writ. The reason of this rule is, that if each one should be allowed to prosecute his writ separately, it would cause delay and perplexing litigation to the plaintiff. It would seem that the reason could not apply in this case, because Vance is barred by having given and forfeited a bond. But by holding that Dorsey might still prosecute his writ, this difficulty in some cases would arise; the original judgment is joint or entire, and if it can be reversed it must be reversed as to all the defendants, and the original judgment being reversed, would avoid the bond and judgment thereon. 5 Howard, 188. In ordinary cases therefore we should feel bound to hold that forfeiting a bond would bar a writ of error in the case according to the language of the statute. This difficulty, however, is obviated in the present case by another statutory provision. This action was instituted under the act of 1837, which requires that makers and indorsers shall be sued in a joint action. By a,provision in that act, new trials may be granted to such of the defendants as the verdict may be wrongfully rendered against, and judgment is to be rendered against the others. Now if a part of the defendants can have a new trial, they must also be entitled to a writ of error, and if the verdict and judgment were erroneous as to Dorsey, he is entitled to a reversal, notwithstanding Tance may be barred of his writ of error. The object of this statute was undoubtedly to protect indorsers, and Dorsey stands in that attitude. Having thus the power to review the proceedings as to some of the defendants, we may of course affirm as to part, and reverse as to the others. Or if the writ of error be barred as to some, as to them ,it may be quashed and remain good as to such as may be entitled to it. The objection to a writ of error arising under the statute prohibiting such proceeding after a bond forfeited, may be as well taken by motion to quash as by plea, and as Dorsey is still entitled to have the judgment reviewed, we must examine the merits of his application.

It is assigned as error that the court permitted the notarial record to go in evidence to the jury to prove protest and notice. The objection taken to this record is, that it was not verified by oath as the statute requires.

By the 33d section under the title evidence, How. & Hut. Dig. 609, it is declared that whenever it is necessary to have the evidence of a notary in relation to the protest of a note or bill, “the official act of said notary public, certified under his hand, and attested by his notarial seal, shall be deemed; held and taken to be conclusive evidence of the protest of such pote," on the day it purports to have been made.” The subsequent section provides that “when a notary shall protest such, instrument as described in the foregoing section, he shall make and certify on oath, a full and true record of what shall have been done thereon by him in relation thereto, according to the facts, by noting thereon whether demand for the sum of money mentioned in- the same was made, of whom and when, when the requisite notice or notices were served, and on whom; where the same were máiled, if subh be the case, when mailed, to whom and where directed; and every other fact in any manner touching the same shall be distinctly set forth in his notarial record; and when so made out and certified it shall have the same validity, force and effect, in all courts of record within this state, as if the said notary were personally present and interrogated in court;” and he is declared to be guilty of perjury for making a false certificate. These two sections make the provision complete, and are to be construed together. By the first, the record of a notary is declared to be admissible, and by the second we are informed what that record shall contain, and how it shall be verified. If the record of the notary was admissible, the last section would be useless. The giving of notice is not an official act of the notary, and his certificate that he gave notice is not even made under his official oáth, and no better than the certificate of any other person. The statute certainly did not intend to dispense with the solemnity of an oath in maldng the record evidence. This would be opening the door to imposition without the slightest security. Such was the view taken of this statute in the case of Barnard v. The Planter’s Bank, 4 Howard, 98; but the record was admitted in that case although not made under oath, but it was because the notary was dead, and it was therefore the best proof that could be made. It was therefore error to admit the notary’s record in this case, as it was not under oath, and for this reason the judgment must be reversed.

It is proper to remark, that we have not been called on to determine whether this judgment is still binding on the party who seeks to reverse it. The effect of the forthcoming bond given by Yance on the rights of Dorsey has not been called in question.

Judgment reversed, and cause remanded.