McClelland v. Dickenson

EmeesoN, Justice, delivered the opinion of the court:- The first point made in this, case relates to a question of practice on appeal. The appellants appeal from the judgment alone making no statement on appeal. This appeal brought up the judgment roll alone. In this court the respondent suggests a diminution of the record, and claims that there are files and entries made and entered in this case in the court below, showing certain steps and proceedings resulting in a judgment by consent, and moves, that they be supplied and made a part of the record in the case in this court. The appellants resist this motion, on the ground that their appeal is from the judgment'alone, and consequently nothing but the judgment roll can be reviewed in this court. There can be no difference of opinion as to what properly constitutes the judgment roll. The statute is plain and specific upon that; the papers and orders mentioned in the motion form no part of the judgment roll proper. [102] Nor can there be any difference of opinion but that an appeal from a judgment without any statement simply brings up the judgment roll. In the case at bar, so far as the appellants are concerned, their appeal brings up the judgment roll alone. But the respondent is not responsible for the appeal; he does not wish it; it is brought against his wish; he is satisfied with the judgment as it stands. Is he bound to submit to what the appellants may dictate, by the course they choose to pursue? If there are on the record, and among the files of this case in the court below, other matters than the judgment roll, showing the orders of the court, and the steps taken resulting in the judgment, and materially affecting it, must these be be kept entirely out of sight and beyond the reach of the appellate court, and the appellants be thus allowed to take an unfair advantage of both the lower court and the respondent, by appealing from the judgment and making no statement on appeal? The rules of practice are not designed for any such purpose. If the appellants had made a statement on appeal and had failed to fairly state the conditions of the case in the court below, the respondent could then have remedied the defect by an amendment to such a statement. But in the entire absence of a statement there is nothing to amend, and the only course left was for the respondent to move in this court, or a submission to the wrong sought to be imposed upon him in this court. The motion is allowed. The point made in the case is that the complaint does not state facts sufficient to make a cause of action. The complaint is in ejectment, and sets out the death of the plaintiff’s intestate; his own appointment as administrator; the possession of the decedent of the locus for a number of years and until his death; the possession of the heirs since; that the plaintiff obtained, while he was administrator, the legal title of the premises, and has deeded it to the heirs, and that he is, as such administrator, entitled to the possession, and [103] alleges an ouster by the defendants of a portion of the premises, to recover possession of which the action is brought, claiming damages for the unlawful withholding. The appellants answered, and subsequently it would seem, upon some sort of a compromise, a stipulation was entered into between the appellants and respondent, and filed in the case, in which the appellants agreed that upon the payment to them of $400, they would withdraw their answer and consent that the respondent-should take a judgment for the recovery of the premises, but not for damages for the withholding. ' Counsel for both parties appeared in court, and in accordance with the stipulation the appellants asked and obtained leave to withdraw their answer. The respondent then caused the default of the appellants to be entered, and took the judgment as agreed upon. The complaint is artificially drawn, and contains some statements which are clearly superfluous. It is somewhat vague and uncertain in relation to the premises and ouster, and would have been bad on demurrer for uncertainty, but is good unless demurred to. 25 Cal. 82. There was no necessity of stating in the complaint the fact of the respondent’s procuring the legal title, and deeding to the heirs. Still this statement does .not affect his right to recover. He states in substance, that he is still administrator of the estate, and as such is, under the law of this Territory, entitled to the possession of the estate. The fact of his giving the deed to the heirs does not change this right. If the legal title had been in the decedent it would, at his death, have descended at once to the heirs, and still the administrator’s right to the premises would have been the same. But however this may be, we think the course taken by' the appellants amounted to a release of all errors, and they ought not, with the money paid them by the respondent in their pockets, to be allowed to repudiate their agreement. But it is claimed that the judgment was taken by [104] default when it should have been by consent, and a point is sought to be made upon this. As soon as the answer was withdrawn, the appellants were in default for want of an answer. It is proper to state here that on this appeal the answer is not considered, and serves no purpose in the case, except to show the fact that an answer was put in and afterwards withdrawn, as a part of the history of the case. The judgment incorrectly recites that the appellants were in default for want of an appearance as well as an answer, as their appearance was never withdrawn. But this is unimportant, and even if it were otherwise, this court will treat the judgment as if amended in accordance with the facts. All parts of the record should be construed together with reference to the jurisdiction and the known and established practice and course of proceedings of the courts. When no question can arise as to what the rights of the plaintiff are upon the record itself, and when it would not have been in the power of the court to render a different decision without error, an omission to state that right, or to render that judgment properly upon the records, can be regarded as nothing but a clerical omission, and it is not only amendable, of course, at any time, but in reading the same it should be considered as supplied, whether actually corrected or not. Emery v. Whitwell, 6 Mich. 414, and cases there cited. The judgment of the court below is affirmed, with costs. SOHAEEEER, C. J., COnCUl'S.