Whitwell & Hoover v. Emory

By the Court, Martin, J. We cannot perceive the force of the' objection to the admission of the record'.of the deed from Samuel W. Abbott, and Martha, his wife, to Martha Matthews, that the surname of one of the subscribing witnesses was apparently a fae simile of the original, and could not be read without explanatory evidence. Nor can we conceive what explanatory evidence could be offered to decipher this writing. The case informs us that the record of the surname of one of the witnesses was so written as not to be intelligible, and was apparently a fao simile of the original upon the deed. Parties who procure the record of deeds cannot be held responsible fpr the capacity of the Register to read and write. The same reasons which would debar the plaintiffs of this evidence would operate to invalidate the record, and of consequence the grant in case of a subsequent purchase. To so illiberal a rule we cannot subscribe. The grantor has discharged his duty by procuring the record of, the deed, and the Register had done all his by recording it. It was no lack of. duty on his part, .which is the ground - of this objection, but a too literal observance of it. Were the deed in its body so unintelligible as to convey to the Register no information of its contents, a record which would be equally unintelligible, or a fao simile, would hardly be considered as a compliance with the law so as to affect the rights of others. But not so in the case of a single word, which could have thrown no obscurity over the nature and extent of the conveyance, or [88] the description of the property conveyed, so as to mislead a. person investigating the title. The evidence offered by the plaintiffs was properly admitted. To the admission of the journal entry of Dec. 6, 1841, and the amendment made June 19, 1851, the plaintiffs’ counsel objected, for reasons appearing in the statement of the case,, but the same was received in evidence, subject to the objection. Before this amendment was made there was clearly no final judgment entered in the cause. The entry showed nothing but the fact of interlocutory judgment, the order of reference to the clerk and his action. It is true that it bears upon its face evidence of an omission of something, but what was omitted could only have been inferentially determined. Prom the subsequent action of the Court, it would seem that the omission was thought to embrace the assessment of the amount, due upon the bond, and that which it was conceived went to constitute a judgment, viz : the words “ ordered final judgment forfi and without which there was no evidence of am adjudication by the Court. A judgment is the final consideration and determination of a Court of competent jurisdiction upon the matters submitted to it, and it is only evinced by a record, or that which is by law — as the files and journal entries of this State — substituted in its stead. An order for a judgment is not the judgment, nor does the entry of such order partake of the nature and qualities of a judgment record. This must clearly ascertain not only the determination of the Court upon the subject submitted, but the parties in favor of and against whom it operates.. Such is held io be the rule even in cases of judgments in Justices’ Courts, and certainly it may not be relaxed in Courts of Record. A reference to the conclusion of a judgment record will clearly indicate what we mean, and our practice, which authorizes the files and journal entries to be used in [89] place of a record, does not dispense with any of the essential requisites and evidences of a judgment. Hence the almost uniform practice has been to require the journal entries of proceedings had subsequent to the joinder of issue, to be as full as the postea of a judgment record, and as a matter of fact to a very great extent the language itself has been adopted. The entry with - the amendment, then, comes far short of evidence of a judgment, but is rather in the form and nature of an interlocutory order, or a common rule which by some accident had found its way into the journal of the Court. But the amendment was void, because without the jurisdiction of the Court. At the common law, while the proceedings are in paper, an amendment can be allowed, or a judgment- could be set aside before the adjournment of the term at which it was rendered; but at a subsequent term the Court had no power to change the record of a previous term. By various statutes, both in England and this country, power is given to Courts to amend in many cases, which they could not exercise at common law. Under our statute a Court may at any time amend clerical errors, but that which enters into the consideration of the Court, and constitutes a part of the judgment, cannot be changed after the term. See 3 McLean, 486. Much less has a Cotut power under the form of an amendment to render a judgment. Before the error in this cause could have been corrected, were it susceptible of correction by amendment, we apprehend that it was necessary that the parties to be affected by it should have been cited before the Court. Especially should this be done where the matter had slept ten years. To permit any other course might work irreparable mischief to parties wholly unconscious of their situation, and jeopard rights fairly and honestly acquired. Such practice is in accordance with all the analogies of the law, and we can see no good reason why it should not be pursued. Before a judgment could be perfected in the cause, it was [90] certainly necessary that such course should be pursued, and the parties had afforded to them an opportunity to be heard. Certified accordingly.