Bowman v. McLaughlin

Tabbell, J.: The magnitude of the record, the local prominence of the property involved, and the complication of the controversy have invested this case with more than ordinary interest. Although the record is voluminous, and the proceedings somewhat peculiar, if not novel, familiarity with the facts — 486 — have led us to the conclusion that the merits of this obstinately litigated contest are compressed within narrow limits. The first question to be determined is, had the court authority to restore the lost pleadings and proceedings % That this suit was cojnmenced by petition to enforce a mechanic’s lien ; that the action was instituted in January, 1858; that process was served on defendants; that they appeared; that issue was joined; that a trial was had, with a verdict for plaintiff; that a new trial was granted on motion of defendants; that the war then suspended the progress of the suit from 1860 to 1866 ; that the court had jurisdiction of the parties and of the subject-matter of the litigation; and, in short, that the cause was pending in the circuit court of Hinds county undetermined, when, in 1866, the plaintiff applied to the court to proceed with the cause, and to order the restoration of lost pleadings and papers, are uncontroverted facts. The cause, then, is to be treated as pending, undetermined, in a court of record having full jurisdiction, with all the powers conferred by statute and inherent in such courts. Of the pendency of this suit, an apt illustration appears in the fact that, had McLaughlin brought another' action for the enforcement of his claim, the defendants could have successfully interposed to that the pendency of this, and the proof would have been complete. So, to a bill in equity, plaintiff would have been met with the objection that his remedy at law was open to him. In either case, the obstacles to his progress would have been serious, if not fatal. We apprehend the variety of the documents lost, and the magnitude of the record to be restored, have not only served to incite the ably conducted opposition manifested, but are the source of the doubts, if any, of the power of the court to restore lost papers. Perhaps the use of the word “substitute,” which is not the most appropriate, has induced an unfavorable impression. “Kestore,” which signifies “to bring back, to heal,” — 487 — is more correctly expressive of this practice, and was used in the law of 1864. Terms, however, should not confuse ; as substitute, restate, restore, and like words, may be used as implying the same general meaning. It will hardly be denied, that if prior to trial a declaration, plea or other paper be lost, the court has power to permit its substitution, or restoration, or to admit secondary evidence of its contents. Not only has the court the power, but it is its duty to exercise it. To refuse, on proper showing, would be error if it did not subject the court to just animadversion. The very statement that, upon the loss of a declaration or plea, the court would, upon motion of defendant, dismiss the suit for want of power to allow a new declaration or plea to be filed, or the contents of it to be placed on record by parol testimony, is sufficient to expose its absurdity; and yet, that is the very proposition involved in the case at bar. I. Upon the loss of records and papers, the courts have exercised their power in an infinite variety of circumstances. 1. We quote, by way of illustration, a few cases : In the case of Jackson v. Hammond, 1 Caines, 496, the court allowed the party to file a new record, including the postea, in place of one lost, after the lapse of six years, and to issue execution. In Jackson v. Parker, 2 Caines, 385, the plaintiff having obtained a verdict, and neglecting to file the record, the defendant was allowed by the court to do so. In the case of The People v. Burdock and Case, 3 Caines, 104, the record having been lost, a new one, including an indictment, was allowed to be filed. The journals of the court have been admitted as the best evidence of which the case was susceptible, the records having been burned. 1 McCord, 139. In North Carolina a memorandum from the clerk’s docket, of the amount of the judgment, was received as evidence of a record in favor of a purchaser at sheriff’s sale, under the circumstances of that case. 3 Hawks, 221. In Vermont, the files of the court have been resorted to, and copies of the writ and declaration, where the records — 488 — were lost. 4 Vt. 504. If there be sufficient proof of loss or destruction of a record much inferior evidence of its contents may be admitted, and it cannot be doubted that parol evidence is competent to prove the existence and loss of a record. 12 Mass. 400. The case of Lyons v. Gregory, 3 Hen. & Mun. 237, presents a remarkable similarity to the case at bar, besides its rare historical interest. One Claiborne, in May, 1771, obtained a judgment in King William county court, Virginia, against Bichard Gregory. About the end of the revolution, the court-house, together with the records, including the documents on which this judgment was founded, were destroyed. After the lapse of many years, to wit, about the year 1800, upon a mere “minute” of the judgment containing only its “substance,” imperfectly certified, the county court of King William county allowed the judgment to be docketed, with a view to its enforcement. The defendant interposed the most determined technical resistance, but not upon the merits. The case went twice before the district court, where the judgments of the county court were as often reversed and remanded, when it was taken to the court of appeals. Among other considerations urged by counsel was the long interval of war, and the occlusion of the courts, and a judgment final upon the whole case was asked, and such was the judgment of the court of last resort. Vide, also, 1 Miller (La.), 137; 2 Blackf. 228; 4 Leigh, 137; 1 Watts, 427; 2 Hays; 9 Pet. 663; Eakin v. Vance, 10 Smedes & Marsh. 549. 2. As to amendments, it is held that the record may be amended at any time, if there is any thing to amend by. Bac. Abr., title Amendments; Hard. 62; 6 Monr. 341; 7 Conn. 71; 4 Harr. & McH. 498; 3 Cow. 43; 7 ib. 344. Here we have portions of the record, and it is only a question as to the restoration of the lost parts. 3. The doctrine of secondary evidence is familiar to the profession. Parol proof of contracts, deeds and records lost or destroyed is of constant occurrence, regardless of the — 489 — amount or extent of the rights and of the property involved. If there had. been a judgment, execution and sale of the property in this case, and a question had arisen as to the title of purchaser at sheriff’s sale, that secondary evidence of this record in support of title would be proper is, we suppose, too plain a proposition for dissent. 4. Bouvier says of “pleadings,” that they are “the statements of the parties, in legal and proper manner, of the causes of action and grounds of defense. * * * They were formerly made by the parties or their counsel, orally, ■in. open court, under the control of the court.” In other words, pleadings are but the statements of the issues to be tried. Pleadings and records were always subject to amendment under certain limited and prescribed circumstances, with the permission of the court, though it remained for time and experience to incorporate the subject of amendments permanently into legal jurisprudence. The cases cited, secondary evidence, amendments, and the case before us, present but different phases of the same general principle, yet it cannot fail to be observed that the question of the restoration before trial, as in the case before us, of papers and proceedings lost or destroyed, is one altogether inferior, in all its aspects and results, to the cases referred to. The denial of the power of the courts to substitute, restate or restore lost pleadings and proceedings, under suitable circumstances, would be equivalent to the declaration that the administration of justice is based upon a Draconian system of severity and stiffness, unyielding and inexorable, and that, contrary to facts and text-writers, that, in the last century, remarkable for the liberal tendencies of thought, legal jurisprudence has made no progress. 5. The statutes particularly referred to in the arguments are two: 1st, that of 1864 ; 2d, the mechanics’ lien law. Counsel on both sides assume the law of 1864, under which the petition to substitute was filed, to have been repealed in 1867. An examination shows that-of the eighteen sections of that law, only seven were repealed, leaving — 490 — the remaining sections intact, of which the first confers full, positive, general and unqualified powers upon all the courts of ■ the state, both law and equity, to reinstate causes and restore papers and records when lost or destroyed ; whilé the sixteenth has reference to the service of notice, citations, etc. Article 10, p. 329, Rev. Code, is as follows: “The court may direct the formation of such issues to be tried before a jury, as may be necessary for the determination of all matters controverted in the pleadings, and such issues shall be tried by the same rules of evidence and practice as prevail in other cases at law; and the court may set aside verdicts, and grant new trials, and give judgment according to the justice of the case.” 6. As to the inherent powers of courts of record, vide, Bac. Abr. title Courts; Bouv. Law Dic. title Courts; 1 Pet. 604; Serg. & Rawle. 253; 8 ib. 336; 2 Mo. 98. They can be deprived of their jurisdiction by express terms of denial only. 3 Yates, 479; 9 Serg. & Rawle. 298; 2 Burr. 1042; 1 W. Black. 285. It seems to us that the power of the circuit court to restore the missing portions of the record in this instance, prior to the trial, whether by statute or common law, was ample. To hold that a court of record, upon such a state of facts, independently of the statute, does not possess the inherent right claimed for it in the case before us, would deprive the courts of-their most useful, beneficent, remedial authority. II. Upon this branch of the case, it only remains to consider, whether, in the steps taken by the circuit court, due regard was had to the rights of the parties. Referring to page thirty-three of the record, under date of November 12, 1867, we find the order to substitute in the following words: “This cause coming on to be heard on motion of the plaintiff to file substituted and authenticated copies of his lost pleadings in this cause and try the same instanter; and it appearing to the court from the transcript of the records — 491 — of the orders made in the cause remaining on file therein, the petition filed by the plaintiff and the answer thereto, that this cause was pending in this court and that part of the pleadings and papers pertaining to the record therein have been lost or destroyed as that the same cannot be found, and it further appearing, that the papers or parts of the record so lost can be supplied in substance and effect, and that the cause may be tried on its merits: It is ordered that the plaintiff have leave to file a new complaint in lieu of the one lost, together with an account, and that the defendant have leave to make out and file the answer and pleas and a bill of exceptions in lieu of, and to correspond in substance and effect with, those heretofore filed, or have leave now to plead, and that the cause proceed to trial.” So far from acting hastily, and oppressively, the court below appears to have proceeded with prudence, caution, and even tenderness toward the defendants and their attorneys. The latter were officers of the court. It was their duty to obey its orders, which might have been peremptory, but they were afforded the opportunity (and time would have been given if asked) to plead, and to prepare substitutes for the lost papers. The facts were all within their knowledge. Their original answer, filed in 1858 and withdrawn by them in 1859, was in their possession. Its loss at least is not alleged. The action was a simple one, for work, labor and materials. The active contracting defendants were living and present. Under the order and in connection with the provisions of the Code as to amendments, their rights were in no danger, but were fully and perfectly protected. III. The next question in the solution of this case, as it presents itself to our view, involves the first assignment of error, and the disposition of the pleas in abatement. Upon page four of the record we learn that the plaintiff in May, 1859, on leave of the court, amended his complaint by striking out the names of P. Hilzheim, Shaw, Hunt — 492 — and Anderson, to which permission and action the defendants objected and excepted. The facts presented to the court by the respective parties for and against this amendment the record does not state. In the absence of these facts, no error being shown, the presumption is, that the court acted upon a just and legal basis. Subsequently, during the same term, the defendants asked and obtained leave of the court to withdraw their issuable answer to the merits. In the language of the order, “it is considered by the court that they have leave to with draw the pleas by them heretofore filed in this cause, upon leaving certified copies of the same upon file with the papers, and that they have until Saturday, May 21st, in which to file further pleas in this behalf.” Under this order they could only file further pleas to the merits, yet' they filed pleas in abatement, attempting to set up an interest in P. Hilzheim in the property in controversy. Notwithstanding these pleas, and though, as far as the record shows, undisposed of, the cause was tried on the merits in 1860. • The existence of these pleas, without action, was unnoticed until 1866. In regard to them we remark: 1st. They were unauthor ized by the order; 2d. The question, it is to be presumed, was disposed of by the court, on the motion for leave to amend plaintiff’s complaint, opposed by defendants; 3d. An inspection of these pleas shows the demurrer to them to have been well taken. They do not sufficiently set out the interest of P. Hilzheim in the hotel contract and property. The extent and circumstances of that interest were peculiarly within the knowledge of the defendants, and failing to state it distinctly, so that the court could act upon it, the presumption was strongly against the plea. For these reasons, the pleas were irregular and were properly disposed of. 4th. But the granting of a new trial cured this error, if it was such. IY. The merits: Neither in the record, in the assign — 493 — ment of errors, nor in the argument of counsel, do we discover any complaint that the issues in this case were not fully and fairly presented to the jury. In this court the defendants rest their cause upon technicalities, mainly those involving no vital, legal principle, 'but only discrepancies alleged to exist between the originals and substituted papers. There have been two jury trials on the merits: One, in 1860, resulting in a verdict for plaintiff, for $4,082 79. The cause of action arose in 1857. The defendants state on oath that the controverted amount was between three and four thousand dollars. They sought to reduce the claim, on the ground that the work was badly done and the materials inferior. Twelve citizens and neighbors, constituting the jury, in the same county where the-property is situated and the work performed; jurors, and parties probably well known to each other, and each, probably, familiar with the property, if not with the very work in controversy, declared, on oath, that the defendants were'indebted to the plaintiff in the amount above stated. Making a calculation of the interest, the sum allowed for work and materials can be readily estimated. Again, in 1867, another jury, at a circuit court held in Jackson, in the midst of the parties and witnesses, and within sight of the walls of the “Bowman House,” rendered a verdict, by which they say, that on the 25th of November, 1867, the defendants were indebted to the plaintiff in the sum of $5,887 59, exceeding the verdict of 1860, only by the interest. If the issues were not fully presented on this trial it was the fault of defendants, for they had leave to restate the pleadings, and their right to amend, under the Code, is almost ad libitum. And, if the allegations of the defendants in regard to- the work and materials were not investigated, the defendants are alone responsible, for the trial was in the midst of a “multitude of witnesses.” There could have been no lack in this respect, because missing portions of depositions were allowed to be supplied — 494 — by their own statements. Indeed, as already stated, we have looked in vain through the record, and into the assignment of errors, for information that there was not a full, fair and impartial presentation of all the facts to the court and jury. Y. Alleged errors: We have patiently examined the record, the assignment of errors, and the argument of counsel. From the almost infinite number of objections and exceptions, it might well be said of this cause that “ clouds and darkness round its base” are “spread,” though in its conclusion both parties will, doubtless, gladly complete this couplet of a charming poet. The errors assigned are mainly founded upon the numerous discrepancies and disagreements which swell the record, through the policy of resistance pursued by the defendants. It does not appear that these contested points of counsel, whose defense is marked by rare zeal and acuteness, in any way entered into the trials on the merits, or that they could have influenced, even remotely, the verdict of the several juries. If any material right of the plaintiff in error has been denied, we are unable to perceive it, or if the verdicts of the juries were unjust it has not been pointed out to us. If the pleadings, as restated, failed to set up fully (which does not appear) the defense, or if the record presented to us is defective, the plaintiff in error cannot complain, for they had the opportunity to re-create and amend both. Except in the single instance of supplying missing portions of depositions, they have chosen the policy of resistance and disagreement from the powers of the court to the most unimportant paper or fact. Most of the discrepancies and omissions may be accounted for through this mode of defense. That the merits were thus withheld from the juries is not made to appear, while it is apparent that nearly, if not quite, a perfect record might have been presented by the co-operation and aid of plaintiffs in error, but no such effort was made by them. Relying upon , the impartiality of jury trials, two or — 495 — three general rules in addition underlie and have largely influenced the results we have reached. 1st. The equitable character of mechanics’ liens. The claims of the mechanic are favored in law. They are often unlettered men, and courts will uphold the policy of giving statutes a free interpretation in favor of the laborer. Buck v. Brian, 2 How.; Buchanan v. Smith & Barksdale, 43 Miss. 2d. The construction of laws and statutes. Story says “laws will be construed strictly, to save a right or avoid a penalty, and liberally, in order to give remedy.” And again, that “remedial statutes are construed liberally.” 3d. The general principles of justice and equity in their highest sense. Blackstone says, “It is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper remedy.” 2 Black. 109. Our own Blackstone, Kent, says, ‘ ‘ the common law may be cultivated as part of the jurisprudence of the United States. In its improved condition in England, and especially in its improved and varied condition in this country, under the benign influence of an expanded commerce, of enlightened justice, of republican principles and of sound philosophy, the common law has become a code of matured ethics and enlarged civil wisdom admirably adapted to promote'and secure the freedom and happiness of social life. 1 Kent’s Com. 366. Again our author says, “It fills up every interstice, and occupies every wide space which the statute law cannot occupy.” Ib. 367. And again, that it is “ the application of the dictates of natural justice and of cultivated reason to particular cases.” Ib. 514. “ Commutative justice,” Bouviersays, is “ that virtue whose object it is to render to every one what belongs to him, as nearly as may be, or that which governs contracts.” “To render commutative justice the judge must make an ¿quality between the parties, that no one may be a gainer by another’s loss,” while “distributive.justice,” is described as “ that virtue whose object it is to distribute rewards and punishment to each one according to his merits, observing — 496 — a just proportion by comparing one person or fact with another.” The Frederican Code is summoned up in one single brief rule of right, namely: £ £ Grive every one his own. ’ ’ The whole spirit of modern jurisprudence is directed to prevent substantial justice from being defeated by an adherence to mere technical forms. 40 Miss. 62. Believing substantial justice has been done, this whole ease considered; and in view of all the facts and circumstances, we are of the opinion that the interest of all the parties will be best promoted, and that we approach nearest to justice to each, by affirming the judgment of the court below. Let the judgment be affirmed. 'A. re-argument was applied for and granted in the terms following, viz. : Per Curiam. Re-argument granted, but to be limited to two questions: 1st. Whether the judgment covers too much land, or whether it is proper in this particular ; 2d. Whether the proper parties were before the court, and whether the case was disposed of as to parties. We adhere to the opinion on the proposition of the right of a court of law to supply the loss or destruction of parts of the papers constituting matter of record, by parol, or the best evidence capable of being produced. On the argument the same counsel appeared as before, and besides oral argument, they severally filed elaborate written arguments too long for insertion here, and which the reporter is unwilling (for fear of doing injustice) to attempt to abridge. The following is the opinion delivered after the re-argument : Tarbell, J. : This case is submitted, upon re-argument, with reference to two points only, viz.: as to the parties and as to the premises in controversy. It would be sufficient to say, as conclusive of the ques — 497 — tions involved, that the proceeding to enforce a mechanic’s lien is in the nature of a suit in equity, designed to give effect, in one suit, to the liens of the mechanics and material men, who have contributed to the erections and improvements on the premises, and, also, to conclude the interests of all persons in the premises at whose instance and for whose benefit the work is done and materials supplied. There may, therefore, be several distinct judgments. In view of the peculiar circumstances attending this case, the loss of papers by the casualties of war and the great difficulty of substitution, we have not been disposed to apply to it a nice criticism; but rather to reach approximate justice, so far as this could be done in accordance with the principles of law. This proceeding was instituted in 1858 against J. H. Bowman, H. Hilzheim, P. Hilzheim, John. W Shaw, P. S. Hunt and Warren P. Anderson, claiming mechanic’s lien on the c! Bowman House,” so called, and the premises belonging therewith. On leave given, opposed by the other defendants, the original -petition was amended by striking out the names of P. Hilzheim, Shaw, Hunt and Anderson. The evidence before the court, upon which this amendment was allowed, is not given in the record, and the presumption is, therefore, strongly with the action of the circuit court. If, however, the affidavit of Bowman, contained in the record, constitutes the evidence thereon, it is entirely evasive on the interest of P. Hilzheim, and it is most significant, that P. Hilzheim, who, of all others, must have known the interest of Phillip, failed to state or disclose it to the court. Subsequent to the amendment as to parties, a trial was had, resulting in a judgment for the plaintiff, whereupon a motion for a new trial, made by defendant, was sustained. Upon the application to substitute papers, in 1866, the «defendants objected thereto, and among other objections made, it was insisted that the court erred in 1859, prior to the trial in 1860, in permitting plaintiff to amend, by striking out P. Hilzheim, and in refusing to make the widow — 498 — and heirs of Phillip, parties, but no question was raised as to the description of the premises upon which a lien was claimed. It may be stated that the widow and heirs of Phillip did not seek to be made parties, nor was their interest ever disclosed, so far as the record shows. In his affidavit before referred to, Bowman states, that “Phillip Hilzheim, in his life-time, held written evidence of that interest and joint ownership, that writing was made by Hyman Hilzheim, but whether it was an absolute deed, conveying legal title to an individual interest in the premises, or a writing by which Phillip Hilzheim’s right, title, or interest was recognized and acknowledged, affiant is' not now certain, nor does affiant know precisely the interest owned by Phillip Hilzheim, but Hyman Hilzheim certainly knew, and was perhaps the only one who did know the interest of Phillip. His neglect to disclose that interest must be taken strongly against the averment that Phillip was a necessary party to this proceeding. But these questions are set at rest, so far as our action is concerned, by the conduct of the defendants, upon the order granting leave to supply lost papers. The defendants were then at liberty to aid in making up the issue, in bringing forward the necessary parties, and in correcting the description of the premises sought to be embraced in the lien. The defendant utterly declined to pursue this just course, but adhered firmly to a policy of obstinate resistance, and the description of the premises has been nowhere questioned, except on the final hearing in this court. In the judgment upon the verdict, in 1860, the premises are described as “lots Nos. 1 and 2 in fractional square number one in the city of Jackson,” together with, etc., “being known as the Bowman House.” The substituted petition, filed in 1867, for the original, refers to the premises as “said hotel, and the lot of ground on which it stands, which lot is known and described as fractional square, No. 1, north, in the city of Jackson, and the building or hotel known as the Bowman House, and is on the corner of State — 499 — and Amite streets, excepting the lot oil the north of said hotel, on which stands a house occupied by--and further, the petition claims “ a lien on said building, and the lot on which it is erected.” The answer of defendants, and their pleadings refer to the “hoteland lot in plaintiff’s petition mentioned.” In the judgment upon- the second verdict in 1867, the description is, that “the lots, buildings and premises described in his petition or complaint in this cause, are subject to the lien,” etc., and again, as “the lots, buildings and appurtenances specified in said petition or complaint, to wit: lots Nos. 1 and 2 in fractional square, No. 1, north,” etc. So far as we can judge, this description is definite, and the premises are thereby capable of actual and precise location. This .judgment, however, will conclude only the interest of the parties hereto. Of course, if there be other parties having an interest in these lauds, they will be in no wise affected by the judgment. Hence, we have no hesitation as to the justice of the conclusion we have reached.' The ease has been in the courts nearly fourteen years, and, although not without its difficulties, we are' satisfied with' our former determination thereof. We adhere to our judgment heretofore given.