Opinion
05-09-1826
Cunningham v. Mitchell. [*] Two Suits
Stanard, for the appellee. No Counsel, for the appellant.
This was an appeal from the Superior Court of Law for Spottsylvania county. The case was this:
Two motions were made upon due notice, by Reuben Mitchell, against Joshua Long and James Cunningham, for the sums of $ 215 73, and $ 455 91, money which he had paid as surety on two forthcoming bonds executed by Long and Cunningham, and himself as their surety. The clerk certifies, that the plaintiff, in support of his motions, introduced two executions against Long and Cunningham, his appearance bail, and forthcoming bonds in pursuance thereof. These bonds are executed by Long, Cunningham and Mitchell, reciting in the condition, that a Fi. Fa. had issued against the goods and chattels of Long and Cunningham, his appearance bail, a negro man & c. of Long's taken and released upon giving the said bond; but they do not state whether Cunningham was a principal obligor or a surety. They only state that Long " hath tendered the above bound Reuben Mitchell, as security, & c." The Sheriff states in his returns, that the forthcoming bonds were taken of the said Long and Cunningham, with Mitchell as surety. Judgments were obtained on these forthcoming bonds, executions issued, and the money paid by Mitchell, as appears by the return of the Sheriff.
On these motions, judgments were rendered by default; and Cunningham obtained a supersedeas.
Judgment affirmed.
Stanard, for the appellee.
No Counsel, for the appellant.
The principal question made, was, whether, upon this record, Cunningham was to be considered as a surety or a principal obligor. The counsel for the appellee, relied on the case of Preston v. The Auditor, 1 Call, 471, to shew that it ought to be presumed, that the Court below had evidence that Cunningham was a principal and not a surety; and that if the appellant contested that point, he ought to have made his evidence part of the record.
OPINION
JUDGE GREEN
In these cases, the defendant in supersedeas having given due notice that he should move for judgments against the plaintiff in supersedeas and Joshua Long, for money paid for them, as their surety, under execution; the defendants in the motions failed to appear, and judgments were given according to the notice. The proofs upon which the judgments were given, do not appear in the records. The plaintiff in supersedeas, having obtained copies of the records, and also, certain papers which the clerk certifies were the evidence upon which the judgments were rendered, objects that the judgments were erroneous, because it appears from the papers, certified by the clerk as the evidence, that in truth, Mitchell was not the surety for Cunningham, but for Long only; and, that Cunningham was a joint surety with Mitchell for Long, the principal debtor. From these papers it appears that two suits were brought against Long, and judgments were rendered against Long and Cunningham as his appearance bail; upon which executions issued and were levied upon Long's property, which was restored upon his tendering Mitchell as his surety in forthcoming bonds. Cunningham joined in these bonds; but it is not said upon the face of the bonds, whether he joined as principal or surety. The Sheriff's returns upon the executions state, that forthcoming bonds had been taken of Long and Cunningham, with Mitchell as his surety, and forfeited. Executions were awarded upon these bonds, and being issued, were paid to the Sheriff by Mitchell.
If the papers which disclose these facts could be considered as properly a part of the record, the judgments were right upon the merits, taking the Sheriff's returns that Long and Cunningham were the principals and Mitchell the surety, to be true. These returns did not contradict the evidence afforded by the executions and bonds. Although Cunningham appears to have been Long's appearance bail in the first instance, and the executions issued against him in that character, yet he might have stipulated with Mitchell to execute the bonds as principal, and to save him harmless, as an inducement to Mitchell to execute them as surety; and Mitchell might have refused to execute the bonds on any other terms. The bonds themselves do not ascertain whether Cunningham executed them as principal or surety, and, as in all other cases of joint bonds, the question whether one was principal and another surety, was to be solved by evidence aliunde. Cunningham might have contradicted the Sheriff's return; and in that case, the Sheriff himself would have been a competent witness to prove its truth. He cannot now, after submitting to a judgment by default, object, in this Court, to the truth of the return; for it cannot be here supported by parol proof, as it might have been in the Court below, if it had been there objected to.
But, the certificate of the clerk, that those papers were the evidence upon which the judgments were founded, cannot be received as a part of the records. His certificate to that effect can have no more effect than that of any other individual. He may certify that such records exist in his office, but not what use was made of them. That ought to have been shewn by the record; and it was the duty of the party wishing to avail himself of the fact, to have it made a part of the record. We are bound to consider the fact, that Mitchell was surety for Long and Cunningham, which was the foundation of the motions, was properly in proof before the Court, and this was the ground of the judgment in Preston v. The Auditor, 1 Call 471.
The judgments should be affirmed.
RECORDS.
I. Public Records.
A. Definition of Public Records.
B. Duty to Keep Records.
C. Authority to Make Records.
D. Conclusiveness of Act of Recording.
II. Judicial Records.
A. Matters That Are Part of the Record.
B. Matters That Are Not Part of the Record.
1. Quaere.
C. Additions Made by Clerk.
D. Mode of Proving.
E. Certifying Records in Removed Cause.
F. Curing Defects.
G. Correcting Errors.
H. Signing Compelled by Mandamus.
III. Amendment.
IV. Inspection.
V. Lost Records.
VI. Removing Records.
VII. Rejected Pleas.
Cross References to Monographic Notes.
Appeal and Error, appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.
Bills of Exception, appended to Stoneman v. Com., 25 Gratt. 887.
Evidence, appended to Lee v. TapscottWash. (VA) 276.Indictments, Informations and Presentments, appended to Boyle v. Com., 14 Gratt. 674.
Instructions, appended to Womack v. Circle, 29 Gratt. 192.
Judgments, appended to Smith v. Charlton, 7 Gratt. 425.
Jurisdiction, appended to Phippen v. Durham, 8 Gratt. 457.
New Trials, appended to Boswell v. Jones, 1 Wash. (VA) 322.
Removal of Causes, appended to Brown v. Crippin, 4 Hen. & M. 173.
I. PUBLIC RECORDS.
A. DEFINITION OF PUBLIC RECORDS. -- A public record is a written memorial, intended to serve as evidence of something written, said or done, made by a public officer authorized by law to make it. Coleman v. Com., 25 Gratt. 865.
B. DUTY TO KEEP RECORDS. -- Whenever a written record of the transactions of a public officer in his office, is a convenient and appropriate mode of discharging the duties of his office, it is not only his right, but his duty to keep that written memorial, whether expressly required so to do or not; and, when kept, it becomes a public document, a public record, belonging to the office and not the officer. Coleman v. Com., 25 Gratt. 865.
C. AUTHORITY TO MAKE RECORDS. -- And it is not necessary that one who makes a public record should derive his authority from an express statutory enactment. Coleman v. Com., 25 Gratt. 865.
D. CONCLUSIVENESS OF ACT OF RECORDING. -- The act of a clerk admitting a paper to record is conclusive upon the question whether the paper is what it purports to be. Taliaferro v. Pryor, 12 Gratt. 277; Grove v. Zumbro, 14 Gratt. 501 at 515; Johnston v. Slater, 11 Gratt. 321; Vaughn v. Com., 17 Gratt. 386; Quinn v. Com., 20 Gratt. 138; Herring v. Lee, 22 W.Va. 661; State v. Vest, 21 W.Va. 796; Burley v. Weller 14 W.Va. 264.
II. JUDICIAL RECORDS.
A. MATTERS THAT ARE PART OF THE RECORD.
Bond Given under Order of Court. -- A bond given pursuant to an order of court, becomes a part of the very record. Beery v. Homan, 8 Gratt. 48.
Writ and Inquisition. -- And, upon a motion to quash a writ and inquisition founded on a judgment at law, the writ and inquisition are a part of the record. Wallop v. Scarburgh, 5 Gratt. 1.
Warrant of Summons. -- So, too, the warrant summoning the magistrates of an examining court is a part of the record, but the warrant of commitment is not. Com. v. M'Caul, 1 Va. Cas. 271.
Execution. -- An execution of the same court, used as evidence on the trial of the cause, will be regarded by this court as part of the record, without a certiorari. Preston v. Auditor, 1 Call 471.
Papers in Another Suit. -- And, a decree which refers to the record of another suit as an exhibit in the cause makes such record a part of the record of the cause under consideration, though it is not referred to in the bill or answer, nor made an exhibit by an entry on the order book. Craig v. Sebrell, 9 Gratt. 131.
How Far Writ Part of Record. -- But the writ is a part of the record, for the purpose of amendment only, where issue has been joined upon a plea to the action. Payne v. GrimMunf. 297.
B. MATTERS THAT ARE NOT PART OF THE RECORD.
Advertisements of Judicial Sale. -- Where advertisements to rent are not referred to in the commissioner's report, or in decree of sale subsequently ordered, they will not, though copied into the record, be considered a part thereof on appeal. Mustain v. Pannill, 86 Va. 33, 9 S.E. 419.
Bill of Injunction. -- And, a bill of injunction and the proceedings thereupon are not properly part of the record of the judgment at common law. Hite v. WilsonHen. & M. 268.
Papers Not in Cause. -- Papers upon which a cause was not heard in the trial court constitute no part of the record of the cause and cannot be considered. Florance v. Morien, 98 Va. 26, 34 S.E. 890.
Caption of Orders. -- Nor is the caption to the orders a necessary part of the record. Jones v. Janes, 6 Leigh 167.
1. Quaere.
Quaere, as to Depositions and Commissioner's Report. -- A cause is brought on to be heard upon the bill, answer, exhibits and award; quoere, if the depositions and commissioner's report are a part of the record. Nelson v. Cornwell, 11 Gratt. 724.
C. ADDITIONS MADE BY CLERK. -- The clerk can add nothing to the record, and his certificate that a deposition or other paper copied by him was the evidence whereon the judgment was founded, is no part of the record. Roanoke L. & I. Co. v. Karn, 80 Va. 589; Cunningham v. Mitchell, 4 189; Watson v. Com., 85 Va. 867, 9 S.E. 418; Offtendinger v. Ford, 86 Va. 917, 12 S.E. 1 Johnson v. N. L. & I. Co., 90 Va. 267, 18 S.E. 36; Com. v. QuannVa. Cas. 89.
D. MODE OF PROVING. -- One of the usual methods of proving records is by examining copies. The method prescribed by the Code of Va., § 3343, is merely cumulative, and does not deprive parties of the right to resort to any other method allowable at common law. So. Ry. Co. v. Wilcox, 99 Va. 394, 39 S.E. 144.
E. CERTIFYING RECORDS IN REMOVED CAUSE. -- Where a cause is removed from one court to another the clerk of the court to which it is removed is the only person who can certify the record. Smith v. Pyrites, etc., Co., 100 Va. 292, 40 S.E. 918.
F. CURING DEFECTS.
Supplying Defects by Averment. -- No defect in a record can be supplied by averment. Wood v. Com., 4 329.
Supplying Omissions by Intendment. -- And, no intendment can supply an omission from the record in a criminal case of what is material, but all proper inferences may and must be drawn from that which does appear. Gilligan v. Com., 99 Va. 816, 37 S.E. 962.
G. CORRECTING ERRORS. -- A court may, at any time, permit the correction of clerical errors in its records. Anderson v. Kanawha Coal Co., 12 W.Va. 526; Bohn v. Zeigler, 44 W.Va. 402, 29 S.E. 983; Gibson v. Com.Va. Cas. 111.
H. SIGNING COMPELLED BY MANDAMUS. -- A judge who fails to sign the record may be compelled to do so by mandamus. Weatherman v. Com., 91 Va. 796, 22 S.E. 349; Quinn v. Com., 20 Gratt. 138 at 143.
III. AMENDMENT.
When Made. -- During the term of a court at which a judicial act is done the record remains in the breast of the court, and may be altered or amended; but after the adjournment of the term amendments can only be made in cases in which there is something in the record by which they can be safely made. Amendments cannot be made after the term, upon the individual recollection of the judge, or upon proof aliunde. Barnes v. Com., 92 Va. 794, 23 S.E. 784.
So, after the term at which a judgment was rendered it is error for the court to amend the record. Sydnor v. Burke, 4 161.
IV. INSPECTION.
The records and papers of every county court clerk's office are open to the inspection of any person. State v. Long, 37 W.Va. 266, 16 S.E. 578.
Proceedings of Electoral Boards. -- And, so much of the record of the proceedings of electoral boards as relate to the appointment and removal of judges and commissioners of election and registrars, or the ordering of a new registration, is a public record, open to inspection by any citizen and voter of the county in which the record is kept, and he may take therefrom at and within a reasonable time, in the presence of the secretary of the board, memoranda or notes of the proceedings of the board as to which no secrecy is enjoined. But so much of said records as relate to the preparation and printing of the official ballots prescribed by law, certification of the same, and their distribution to the judges of election, is not a public record that is open to the inspection of any one, other than the officers of the county to whom the duties of preparing, printing, certifying and distributing the ballots are confided by law, and the secretary of the board cannot be compelled to allow memoranda or notes thereof to be taken, or that portion of the records to be inspected, by any other voter. Gleaves v. Terry, 93 Va. 491, 25 S.E. 552.
V. LOST RECORDS.
Where a record is lost it may be supplied by an authenticated copy or proof of its contents, but this rule does not apply to records in criminal cases. Bradshaw v. Com., 16 Gratt. 507; Hudson v. Yost, 88 Va. 347, 13 S.E. 436.
VI. REMOVING RECORDS.
At the suit of a citizen an injunction will be granted to prevent the illegal removal of the public records of a county. Osburn v. Staley, 5 W.Va. 85.
But, transferring the records of a county to an extension of the clerk's office is not such a removal of them as is prohibited by law. Board of Supervisors of Norfolk County v. Cox, 98 Va. 270, 36 S.E. 380.
VII. REJECTED PLEAS.
See monographic note on " Bills of Exceptions" appended to Stoneman v. Com., 25 Gratt. 887.
[*]For monographic note on Records, see end of case.