Davidson v. Farrell

By the Court. Atwatbe, J. The paper book in this case contains an affidavit for appeal in a j ustice’s court, as required by Sub. 1, sec. 123., p. 517 Comp. Stat., an appeal bond, acknowledgment and justification. Then the statement, that “at the General Term of the District Court, by consent of parties, the cause was referred to James Gilfillan, Esq., who made the following report.” Then follows the title of the Court and of the cause, and the report of the referee finding in favor of the Plaintiff, in the sum of fifty-one dollars and twenty-five cents, as the agreed price for the use of certain jack-screws, and damages thereto, and directing judgment to be entered accordingly. Then follows the entry of judgment, as directed by the report, against the Defendant Davidson, and John Haycock, his surety on appeal, for the amount found by the referee, with interest and disbursements. The paper book is endorsed with the names of the parties as Plaintiff and Defendant in error respectively, but no writ of error accompanies the papers, nor is there any certificate of the clerk, that the foregoing are a transcript of all the papers on file in the cause, nor that the foregoing contains an account of all the proceedings in the cause. It is claimed by the Plaintiff in Error, that the record discloses neither summons, process or other proceeding, whereby the Defendant, Davidson, is in court, nor any pleadings or issue whatever between the parties, and that the finding of the refer.ee, his direction for judgment, and the judgment itself, are unauthorized and baseless. • From the papers before this Court it may be inferred that [261] this action was commenced before a Justice of che "?e .ce, and an appeal taken from the judgment of such Con;, co ¡he District Court. If tbe paper book presented co Cris jour* is •to be considered a record of anything, it shows that a judgment was rendered in the District Court against the Plaintiffs in Error. In a court of general jurisdiction every intendment is made in favor of the regularity of its proceedings, and the validity of its judgments, and it devolves upoi’ cfce party alleging error, to show the same affirmatively by die record. Suppose, in this case, the Plaintiff in Error had made up his paper book by simply copying tbe record of judgment from tbe entry of the same by tbe clerk in his book, and come into this Court and ask to have the same reversed, on tbe ground tbat tbe same appeared to be unauthorized by che record, would this Court be justified in reversing the same, without evidence that the whole record was before tbe Court ? Would not this Court be bound to intend'that the judgment was entered upon regular proceedings in the action, until the contrary was made affirmatively to appear ? In this case, the Plaintiff in Error has gone a step further, and in addition to the entry of judgment, has inserted in his paper book the report of the referee, and asks that the judgment bo reversed, because the paper hook does not show any pleadings between tbe parties. I think it devolves upon tbe Plaintiffs in Error to show, affirmatively by their record, that there were, in fact, no pleadings or issue, and that the Court is not bound to presume tbat tbe paper book contains all the proceedings in the case, unless tbat fact is shown by some competent evidence.- But aside from this view, I think there is enough disclosed by this record or paper book to show tbat issue was joined between the parties. It would appear that the cause came' into the District Court by appeal. The pleadings in a Justice’s Court may be oral or in writing. (Comp. Stat., p. 501, Sec. 26,) and “ the issue before the justice shall be tried before the Court above, without other or further new declaration or pleading, except in such cases as shall be otherwise directed by tbe Court.” Comp. Stat, p. 518, sec. 127). We are left in the dark as to what proceedings were had in the [262] Justice’s Court, but wo find that at “ a G-eneral Term of the District Court, by consent of parties the cause was referred,’’ &c. ¥e find then the “ cause” in the District Court, and the parties consenting to a reference of the same. This word, in its ordinary legal acceptation, I understand to mean the subject of difference between the parties, as settled by the pleadings, whether oral or written, and I think that idea is conveyed by the use of the term in this instance. And this view is strengthened by reference to the report of the referee, who reports to the District Court, as appointed “ to try and determine the several issues in the above-entitled action,” and that “ the parties, Plaintiff and Defendant, appeared before me, and proceeded with the trial of said action,” and made allegations and proofs in regard thereto. The record disclosing thus much, it would be going far for this Court to reverse this judgment on the ground that there were no pleadings or issue in the Court below. The record does not disclose the pleadings, nor state in terms that the parties joined issue ; but it states other facts and proceedings in the cause, which are the necessary consequents upon the existence of ¿headings and an issue, and therefore 'in substance shows that those proceedings wore had in the action. The second ground of objection on the part of the Plaintiffs in Error is, that the judgment is erroneous, in that it was entered against the surety on the appeal bond. It is claimed that this judgment was entered against the surety before the condition of the bond had been violated by the principal, and that the statute authorizing judgment against the surety in such cases, is in conflict with the constitution, in that the judgment is not obtained by “ due process of law.” The constitution provides (Art. 1, see. 7,) that no person “shallbe deprived of life, liberty or property, without due process of law.” What constitutes due process of law in any particular case must depend upon the facts and circumstances of that case. The word “ process,” as used in the section of the constitution above cited, cannot moan that no judgment can be authorized except upon summons, or some writ of that nature technically known as process, first issued ; for it is not doubted but that judgments may be entered upon confession, by [263] submission to arbitration, by warrant of attorney, and, perhaps, in other ways, without service of process. The intent of the langxrage quoted we think is to protect the citizen in the enjoyment of life, liberty and property, and to prohibit interference therewith, except in accordance with such provisions of law as the Legislature may enact to protect society and secure the rights guaranteed by the constitution. That instrument has nowhere defined due process of law. The Legislature, so long as it does not conflict with the fundamental law, has full power to regulate the forms of actions, to prescribe the time and manner of pleading and entry of judgment, to provide in what cases property may be seized*-before judgment, and how the same shall be disposed of ; in short to enact all laws necessary for the protection of the rights and privileges guaranteed by the constitution and provide for the enforcement of the same. This judgment against the surety is authorized by law, and the only question that can properly arise in relation to the point, is whether the law itself is in conflict with the provisions of the constitution. Sec. 134, p. 518, Comp. Stat., provides, that “in all cases of appeal from a Justice’s Court, if the judgment of the Justice be affirmed, or if, on trial anew in the District Court, the judgment he against the Appellant, such judgment shall he rendered against him and his sureties in the recognizance for the appeal.” . And the following section provides, that “ if upon an execution being issued upon such judgment, the principal shall not pay such execution, and the officer cannot find sufficient property of said principal to satisfy the same, such execution shall be enforced against the sureties, and the officer shall specify on his return by whom .the money was paid, and the time thereof.” And Sec. 136 provides that the surety shall have judgment against the principal for the amount so paid by him, with interest at twelve per cent. ¥e see nothing in these provisions inconsistent with the fundamental law. The law does nothing more than to provide the form or manner in which the agreement entered into by the surety shall he enforced. And the surety, in becoming a party to the bond, undor the law as it then existed, as [264] sents to arte' adopts these provisions for the enforcement of the contract ho has entered into with the obligee of the bond, (Heyward vs. Judd, 4 Minn., 4951) The law has declared what liability the surety assumes in signing such a bond, to wit, that a judgment against his principal shall also warrant a judgment against Mm. In effect, it is making the judgment against his principal conclusive evidence of the liability of both upon the bond; and the surety, becoming voluntarily a party to the bond under the law, must be held to have assented to assume all the obligations imposed by the law then in force upon a party holding that relation. The principal is still liable, in the first instance, to satisfy the bond, and it is only upon default on his part to satisfy the judgment, that the property of the surety becomes liable. Practically, the provision only amounts to changing the onus probeendi of showing a default on the part of the principal from the obli-gee to the obligor ; for if the property of the surety was seized upon the execution issued upon the judgment, after the principal had satisfied the same, there can be no doubt but that the surety would be permitted to show the same, and re. strain the officer by injunction, or have such other remedy as might be appropriate to the case. And if the principal does not satisfy the judgment, the surety has no ground of complaint, since the law only provides for enforcing a liability which the surety has voluntarily assumed. This view of the case renders it unnecessary to inquire into the meaning attached by the framers of the constitution to the phrase, “ due process of law,” since if the party has himself authorized the process, whatever it be, he cannot'be permitted to object to the same, and the authorities cited by Plaintiff in Error we think not applicable to the cas® at bar. The judgment below is affirmed.