Meirs v. Bussom

The opinion of the court was delivered by Garrison, J. The first reason assigned by the prosecutor •of this writ of certiorari for the reversal of the judgment given against him in the court for the trial of small causes is that the “justice refused the defendant a trial by jury, although demanded before the merits of the cause had been inquired into by anyone being sworn in the cause.” The return of the justice, in so far as it relates to the •demand for a jury, is in these words-: “He [defendant] asked for an adjournment for two weeks, but I saw nothing that he said sufficient in what he said to grant it. He said he had ■asked for a jury, but I did not understand it so.” It failing by this return to appear that a jury had been demanded, a rule was allowed directing the justice to certify “whether the ■said John Meirs did not demand a trial by jury before the merits of the case had been inquired into by anyone being •sworn in the case.” To this rule the justice returned that [384] “the said John Meirs did not demand a trial by jury at any time.” This return being fatal to the position of the prosecutor, he now contends that it is not conclusive and that he is entitled to a rule to take affidavits to contradict it. The-established practice, however, is the other way. South Brunswick v. Cranbury, 23 Vroom 298. The 'distinction drawn by the prosecutor between the practice in respect to matters of evidence during a trial and motions which if granted would affect jurisdiction or alter the mode of trial, is without substance. The practice is the same. The invariable rule is that recourse may not be had to affidavits where the justice has, in response to a rule of this court, returned what the fact was. Scott v. Beatty, 3 Zab. 256; Moore v. Hamilton, 4 Id. 532. Failing to raise this question, the prosecutor asks for the-reversal of the judgment because the return shows that it is-entered in figures and not in words at length. It is true that,, in connection with the second return, the judgment appears-in words at length. Inasmuch as the justice was not ruled to make any return in that respect, it forms no part of the-case. Moore v. Hamilton, supra. Regarding the judgment as entered in figures, it is, according to a long line of cases, reversible by this court in certiorai. Cole v. Petty, Penn. 60; Walton v. Vanderhoff, Id. 73; Newcomb v. Davis, Id. 82; Stout v. Hoppiny, 1 Halst. 125. Being thus a matter of substance, and not a mere misprision or clerical error, it cannot be amended by this court. The error is in the record as it exists. It is, however, the practice in proper cases, after error brought, for this court to-grant opportunity to the court below to amend its record where the error consists in the mere form of making it. Apgar v. Hiler, 4 Zab. 808; Delaware, Lackawanna and Western Railroad Co. v. Toffey, 9 Vroom 525. Upon the motion of the defendant in certiorari, the record may be remitted to the justice for amendment in the particular under consideration.