Bowes v. Isaacs

• Court: Maryland Supreme Court
• Writing for the Court: Miller, J., delivered the opinion of the court.
• Citation: Bowes v. Isaacs, 33 Md. 535 (Md. 1871)
• Decision Date: 26 January 1871
• Parties: JOHN BOWES v. GEORGE ISAACS and Morris Kahn, use of Alexander Smith.

33 Md. 535

JOHN BOWES v. GEORGE ISAACS and Morris Kahn, use of Alexander Smith.

Court of Appeals of Maryland

Jan. 26, 1871

The causes were argued before BARTOL, C.J., BRENT, MAULSBY GRASON, MILLER and ALVEY, JJ.

John Henry Keene, Jr., for the appellant.

The Act of 1860, ch. 132, (Code, Art. 18, sec. 23,) clothed the clerks of the Circuit Courts in the several counties, of the Superior Court of Baltimore City, and the Common Pleas, with power and jurisdiction to take supersedeas of judgments and decrees in their respective courts, and their acts to be valid must appear to have been performed in strict conformity with the modes appointed by the Legislature.

The Code, Art. 51, sec. 47, provides that the stay of execution on a supersedeas, taken under the preceding sections, shall be computed from the date of the supersedeas. The supersedeas being confessed upon the 15th of January, the stay should have been to the 15th of July, which is another irregularity and a defect apparent upon the face of the judgment.

The clerks of the courts, in the performance of mere clerical duties, act in a ministerial capacity, and in legal contemplation are only the arm or amanuensis of the court--a sort of branch of the legal service--as such, their acts are performed under the court's eye, and by its authority and are subject to its control, and when defectively or improperly executed, upon application to the court, will be corrected as clerical misprisions, but the authority of the courts to make such corrections extend only to the correction of errors which transpire in the course of the business of the court, wherein the clerk acts as the amanuensis of the Court; but this authority of the court does not and cannot be pretended to exist or to be exerted so as to extend to the correction of those proceedings wherein the clerk is clothed by statute with special powers, in the execution of which (under the Code, Art. 18, sec. 23,) he exercises independent functions, and is a separate and distinct tribunal, and as such is not subject to the review inspection, visitation or control of any higher authority. Greff v. Fickey, 30 Md. 75; Baltimore City v. Baltimore Co., 19 Md. 564; Weighorst v. State, 7 Md. 450.

No authority can be adduced to support the doctrine laid down by the Superior Court, that after the stay had expired, the clerk could alter the face of the supersedeas judgment; on the contrary, that doctrine is in the teeth of the uniform decisions of this court. Dilley v. Shipley, 4 Gill, 52; Greff v. Fickey, 30 Md. 75; Chandler v. Fisher, 11 Md. 333; Montgomery v. Murphy, 19 Md. 577, 581; Cornish v. State, 15 Md. 211; Watkins v. State, 14 Md. 412; Ford v. State, 12 Md. 514.

The functions of the clerk being of a quasi judicial character, their validity must appear from the proceedings themselves, and no evidence aliunde can show jurisdiction which doth not appear ex facie.

J. Alexander Preston, for the appellees,

Argued that the clerk was right to correct his mere clerical error in order to make the record conform to the truth, and referred to the following authorities: Weighorst v. State, 7 Md. 442; McCoy v. Bayle, 10 Md. 391; Loyejoy v. Irelan, 19 Md. 56.

The motion to strike out the judgment having been disposed of by the order of the 25th September, 1869, and an appeal from said order having been prayed on the 27th of September, 1869, the affidavit of Mr. Keene, filed the 2nd of October, 1869, could affect the case, only, by introducing other evidence into the record, to be sent to the Court of Appeals, than that which was before the court at the time the "motion" was heard. As the affidavit could not be used for such a purpose, the action of the court below was proper. Greff v. Fickey, 30 Md. 72; Horner v. O'Laughlin, 29 Md. 465.

Miller J., delivered the opinion of the court.

The first appeal in this case is from the judgment overruling the appellant's motion to strike out the supersedeas.

The record shows that the appellees, Isaacs and Kahn, recovered a judgment on the 7th of Jan'y, 1869, in the Superior Court, against Judson H. Smith, which, as the docket entries therein state, was superseded by a supersedeas, filed on the 15th of Jan'y, 1869, with the appellant and Andrew B. Wise, "sureties, due July 15 th, 1869." The form of the supersedeas as it now appears in the record shows that the sureties on the 15th of January, 1869, appeared before the clerk of the Superior Court at his office in the court-house, and confessed judgment in the usual way to be levied of their goods, chattels, lands or tenements in case the said Smith did not pay the said original judgment, " on the 7 th of July, next," and it is signed by the sureties and attested as taken and subscribed before the clerk. The chief ground on which the appellant relies is that in the form of the supersedeas as it stood at the time and prior to making his motion, it was expressed that the confessed judgment should be executed "on the 7th of June next," and that the word """" June" has since and without proper authority been altered to " July." The motion appears to have been heard on affidavits filed on the part of the appellant and on the statement of the clerk made at the time of hearing, and the Judge in his opinion, says: "It appears by the evidence and by the admission of facts that the superseding defendants appeared before the clerk and were informed that the supersedeas would be for six months from the date of superseding the same, and the usual terms of the confession of judgment as prescribed by the Code were repeated to them in which the dates were correctly stated, and they signed the blank form as is customarily done at the clerk's desk, he making the correct docket entry at the time. But in filling up the blank, signed by them, he inadvertently wrote June instead of July, and on discovering his mistake changed the last two letters ne to ly," and being of opinion the clerk had the right to correct his mere clerical errors so as to make the record conform to the truth, he overruled the motion.

With every disposition to sustain if possible this action of the court below, meeting as it apparently does the justice of this particular case, we can find no warrant in law for so doing. By the Code, Art. 18, sec. 23, it is provided that the clerks of the Circuit Courts of the several counties, of the Superior Court and Court of Common Pleas of Baltimore City "shall have the power and jurisdiction to take supersedeas of judgments and decrees in their respective courts, as a justice of the peace has by law, and the supersedeas so taken shall have the same effect as if taken by a justice of the peace; and every security in a supersedeas of a...