Thatcher v. Maack

McAllister, P. J. We are of opinion that although the execution was fair on its face, yet the plaintiff" being a stranger and showing in himself a title which was good as against Bank, the defendant in the execution, it was necessary for the constable to show that the execution was supported by a valid judgment. Martyn v. Podger, 5 Burrows, 2,631; Ackworth v. Kemper, 1 Doug. 41; High v. Wilson, 2 Johnson, 46; Parker v. Walrod, 16 Wend. 514. The point is made that the docket of the justice was inadmissible in evidence, on account of the interlineation made, showing the date of the judgment. We do not think the rule applicable to private writings between individuals which requires explanations of erasures and interlineations by the .party who has had the custody of the instrument, and offers it in evidence, applies to a record or docket of a justice of the peace. So the first mis-step in this case was in the court below applying the rule of explanation to the docket offered. The alteration in question was not a forged alteration. It was made in good faith, upon supposed authority. The circumstances were that the justice, at the time of rendering the judgment, made a memorandum on the wrapper containing the files in the case, of the date and the amount of the judgment. This memorandum was admitted in evidence without-objection, so that the date of the judgment was established by evidence. From that memorandum the justice’s clerk, an unofficial character, it is true, made the amendment of the docket, so as to make it correct. This was done with the justice’s knowledge and tacit acquiescence, and virtually makes it his own act. How the rule is well settled, that parol evidence is not admissible to falsify a record by showing that an alteration whereby the record is made correct was improperly made. Dickson v. Fisher, 4 Burrows, 2,267; Adams v. Betz, 1 Watts, 425. This doctrine was approved in Schirmer v. The People, 33 Ill. 282, and applied in Garfield v. Douglas, 22 Ill. 100. See, also, Koren v. Roemheld, at this term. The docket shows that the court had jurisdiction of the person by personal service of summons, and it had jurisdiction of the subject-matter. In such case, although the court was one of inferior jurisdiction, nothing will be intended to he out of its jurisdiction 'which does not affirmatively appear to be so. The judgment conld be impeached collaterally only upon jurisdictional facts. Hard v. Shipman, 6 Barbour, 621, and cases there cited. If assailed by a direct proceeding on a common law certiorari, the judgment, if the transcript did not show a summons issued and served as required by statute, might be subject to he quashed, but it is otherwise when the judgment is brought in question collaterally, as in this case. Bromley v. Smith, 2 Hill (N. Y.) 517, and cases there cited. There was no error in excluding the transcript of March 14, 1879, of which appellant can take advantage, because the defendant had proved the docket to have been originally just as shown by the transcript, so that the admissions of the latter would have subserved no useful purpose whatever. There being no merit in the points made for reversal, the judgment below will be affirmed. Affirmed.