McMasters v. Blair

The opinion of the court was delivered by Lowrie, C. J. There ought not to have been any further difficulty about this case; for its prinóiples are very plain. It was an issue of fact required in the probate of a will. The real case was the one before the register; and this was ancillary to that, assuming a partially fictitious form before another forum, and hence is called a feigned issue. In its usual form, it appears as an action for damages for a breach of a contract, depending upon a real issue of fact material to the case before the register. Such is the form intended by the writ which is issued by the register to the court that is to try the issue, and which is equivalent to the original writ of the English common law, and gives to the Common Pleas jurisdiction of the case. According as the issue is found by the jury, judgment is entered with costs as in other cases. This has always been the practice in this class of cases. If this form was not strictly followed in this case, it was treated as if it had been. If no judgment was entered on the verdict before the former writ of error was taken, this was not objected to then, and cannot now be. There ought to have been a judgment, and a certified copy, of the record is the proper form of certifying to the register the facts established by the trial. When a case is brought into this court by a writ of error, the whole record is brought up, and the judgment entered here is considered as entered on the record; and when our judgment is remitted with the record to the inferior court, it becomes a judgment on the record there, and is to be enforced in the same manner as if originally entered there. It is no longer here for execution. In this case, we entered a judgment for costs, and remitted the record to the Common Pleas, and thereby devolved on that court the duty of executing the judgment. An execution was issued pursuant to the judgment, and it was error in the court to set it aside. The costs allowed by our judgment were, the costs in this court and in the Common Pleas on the feigned issue, and for these the plaintiff in error is entitled to execution, but not for any costs arising before the register. The order setting aside the execution is reversed at the costs of Martha Blair, the defendant in error, and the record is remitted, with leave to the plaintiff, John McMasters, to take out execution for his costs of suit.