Watts v. Hill, 7 Ark. 203 (1846)

July 1846 · Arkansas Supreme Court

7 Ark. 203

Watts vs. Hill.

The statute which requires a justice of the peace, on appeal from his judgment to th® circuit court, to “file in the office of the clerk of such court a transcript of all the entries made in his docket, relating to such suit,” contemplates such a filing as will give credence to the transcript, process and papers ; and without the certificate of the justice before whom the proceedings were had, that such transcript embraces “all the entries made in his docket relating to the cause,” or some other form of authen* tication.the circuit court cannot judicially know of the existence of the appeal.

A judgment rendered in the absence of such authentication is coram nonjvdice, void, and an amendment of the transcript after the rendering of the judgment will not give it validity.

The transcript should be amended by rule upon the justice before judgment.

Writ of Error to the Circuit Court of Clark County.

Ezra Hill brought suit against Presley Watts on a note, before a justice of the peace of Clark county, in July 1844. The justice rendered judgment against Watts, and Hill appealed to the circuit court. The justice sent up what purported to be a transcript of the proceedings before him, but it was not authenticated by his certificate and official signature. At the October term of the circuit court, 1844, the cause was continued. At the March term 1845, judgment was rendered against Watts by default. He sued out a writ of error from this court, returnable to the January term 1846, and at the return term assigned errors.

After which, at the March term of the Clark circuit court, 1846, on motion of Hill’s attorney the court permitted the justice of the peace to amend his transcript by aifixing his official signature thereto. Afterwards, at the special term of this court in April 1846, his counsel obtained a certiorari, brought up the amended transcript, and filed a joinder in errors, at the present term.

Watkins & Curran, for the plaintiff.

It must be conceded by all that, at the time the judgment of the circuit court was rendered, ft had no jurisdiction, and the judgment was consequently void and remained so for more than one year and until the amendment; now the question, presented by the record, is, does this amendment breathe life and vitality into this void judgment and render it valid from the beginning?

It seems that, even tho’ the amendment was properly made, the judgment should be reversed. Inasmuch as there was no transcript filed at the return term of the appeal or even before the judgment was rendered, it cannot be presumed that Watts had any notice— he neither had actual or constructive notice of the pendency of the suit against him.

Before the justice, Watts pleaded a failure of consideration and it was error for the circuit court to render judgment against him without disposing of that plea, Reed et al. vs. R. E. Ban/c, 5 Ark. R. 493, Hicksvs. Vann, 4 Ark. R. 526. The judgment is for all of the costs,when it should have been only for the plaintiff’s costs,

Flanagin, contra.

The only question to be determined here, is, whether the circuit court did right in permitting the justice to rectify the transcript.

In the English courts the practice is to rectify and evidence it by seal. The Rev. Stat. page 516, require the justice to'send up a transcript, not to certify. This court, in Brown's adr. vs. Hill 4- Co., 3 Ark. 78, decided that, after error brought an amendment might be made in the court below avoiding the error, and this in the process which gave the court jurisdiction of the parties. It may hence be observed that amendments of proceedings connected with the notice of the pendency of an action are allowed with great caution.

From this authority the question is narrowed to this, can a transcript be amended under any circumstances: for it is expressly determined that amendments can be made after judgment and after error brought.

By Rev. Stat. sec. 180, Title “justices of the peace,” it is prescribed that the court may compel the justice to make such amendments as will cure the defects. This of itself is sufficient to justify the court below. This is not one of the papers that cannot be amended because there is nothing to amend by. The making the affidavit, bond and praying the appeal are the foundations, and all things else can be amended or substituted. The bond, which is one of the foundations of the appeal, may be wholly erroneous or may not exist and still the appeal be sustained. See sec. 181, Title “justices of the peace,” Rev. Stat.

In cases innumerable it has been decided that an error committed by the clerk of a court is amendable at any time, and this because it would be inconsistent with the principles of justice that a suitor should be prejudiced by the negligence of the officers of the court. Again, it is decided in Levy vs. English, 3 Ark. 65, that a justice of the peace, in preparing papers for an appeal, is acting ministerially, and consequently all his acts in that capacity are amendable at any time.

The doctrine of amendments has been carried to any extent that may be necessary in order to obtain justice. In Moore vs. Green, 6 T. R. 8, the court of King’s Bench permitted a judgment to be antedated two years, and this not in accordance with the facts. In 7 T. R. the K. B. permitted an alteration of names in accordance with the facts. Amendments are to be allowed or disallowed at discretion of the inferior court, and the appellate court will not interfere to control it. See United States vs. Buford, 3 Peters 12. Chlror rs. Kciirri/ien, 11 Wheaton 280.

Then from the authorities it may be adduced. 1st, That the transcript is amendable by statute. 2d, That by the practice of this court, the K. B. and U. S. supreme court, amendments are admissible after error and the matter of amendment assigned for error. 3d, That it is not the transcript which gives jurisdiction but the granting of an appeal. 4th, That a magistrate, in preparing a transcript is acting ministerially and an error of his cannot prejudice the parties. 5th, That all amendments are admissible which tend to the furtherance of justice. 6th, That superior courts will not interfere with the inferior courts in their exercise of this power. 7th, That the proper rule in allowing of amendments is, would the amendment promote justice.

Cross, J.

Hill brought suit before a justice of the peace, and the judgment being against him, appealed to the circuit court. The paper purporting to be a transcript of the proceedings and judgment rendered in the cause was neither signed or certified by the justice officially or otherwise. Watts did not appear and the circuit - court rendered judgment by default against him.

When an appeal is taken from the judgment of a justice of the peace, it is made the duty of such justice on or before the first day of the circuit court next thereafter to “file in the office of the clerk of such court a transcript of all the entries made in his docket, relating to such suit.” Rev. Stat. p. 516, sec. 176. The filing contemplated must surely be such as to give credence to the transcript, process and papers ; and without the certificate of the justice before whom the proceedings were had, that such transcript embraces “all the entries made in his docket relating to the cause,” or some other form of authentication, the circuit court cannot judicially know of the existence of the appeal. In the case before us there having been no certificate of the justice or other evidence of authenticity, the proceedings in the circuit court were coram non judice, and therefore void. The subsequent authentication, although made under an order of the circuit court cannot supply the deficiency so as to give validity to the judgment. Sec. 178, p. 516 of Rev. Stat. provides that “ upon an appeal being made and allowed, the circuit court may by rule and attachment compel a return by the justice of his proceedings in the suit,” &c. There having been no return by the justice of which any notice could be taken after the appeal was made, the remedy thus provided should have been resorted to by the appellant. This was not done.

Let the judgment of the circuit court be reversed.