Chesebro v. Babcock

• Decision Date: 10 July 1890
• Citation: 22 A. 145,59 Conn. 213
• Court: Connecticut Supreme Court
• Parties: CHESEBRO v. BABCOCK.

22 A. 145

59 Conn. 213

CHESEBRO

v. BABCOCK.

Supreme Court of Errors of Connecticut.

July 10, 1890.

Appeal from court of common pleas, New London county; Crump, Judge.

Application by Charles L. Chesebro for mandamus to Charles H. Babcock, a justice of the peace, to compel him to amend his record. The writ was denied, and petitioner appeals.

H. A. Hull, for appellant.

S. Lucas, for appellee.

ANDREWS, C. J. This was an application to the court of common pleas in New London county for a mandamus, claiming that the defendant, who was a justice of the peace in that county, should be required to change the record of a certain case decided by him as such justice of the peace. The record which it is alleged should be changed is as follows: "George L. Chesebro, of Stonington, Ct., vs. J. Clark Crandall, of Westerly, R. I. New London County, December 10th, 1888. Before Charles H. Babcock, Esq., justice of the peace. This action, by complaint, claiming an account and $100 damages, which writ was returnable the 25th day of August, A. D. 1888, came before me, said justice of the peace, holding court on the day last mentioned at the place aforesaid, and thence by legal continuance to the 10th day of December, A. D. 1888, when and where the parties appeared; and the defendant demurs to the complaint because it sets forth in but one count two separate and distinct causes of action, namely, one for breach of contract, and one for trespass. Pending the decision of the court on the demurrer, the defendant submitted to the judgment of the said court, and appeals to the court of common pleas; whereupon it is adjudged by this court that the plaintiff recover of the defendant $100 damages, and his costs, taxed at $14.91. The defendant appeals from this judgment to the court of common pleas to be holden at New London in said county on the first Tuesday of February, A. D. 1889. And the defendant, as principal, and James A. Peabody, of Stonington, as surety, are recognized to the adverse party in the sum of $50 to prosecute his appeal to effect." The averment in the application is that "said judgment for said plaintiff was rendered, and said justice court was adjourned sine die, on the 10th day of December, 1888, and said pretended appeal and said pretended appeal-bond were taken by said Crandall on the 29th day of January, 1889." The prayer of the application is "that the said Charles H. Babcock be required to make his record of said case according to the fact, showing that said judgment was rendered, and said justice court adjourned sine die, before the taking of said pretended appeal and said pretended appeal bond, or signify cause to the contrary," etc. The facts of the case as found by the court of common pleas are these: The defendant was a justice of the peace for New London county, residing in the town of Stonington. The plaintiff brought his certain complaint against one J. Clark Crandall before the defendant, as said justice of the peace, demanding $100 damages, and returnable on the 25th day of August, 1888, at 9 o'clock in the forenoon. The case so brought was regularly continued from the 25th day of August to the 11th day of September, and thereafter from time to time to the 10th day of December, 1888, when judgment was rendered for the plaintiff to recover $100 damages, and his costs. Prior to the 10th day of December an agreement had been entered into between the counsel for the plaintiff and the counsel for Crandall to the effect that Crandall should by his counsel file a demurrer to the complaint, that judgment should be rendered thereon against him, and that he should then appeal to the next term of the court of common pleas in the county. This agreement had been communicated to the defendant. By reason of such agreement, no one appeared either for the plaintiff or for Crandall before the defendant on said 10th day of December, and thereupon the defendant rendered judgment for the plaintiff, as is above stated, and allowed an appeal. The counsel for Crandall had said to the defendant that, as he should not be present on that day, he should want time to obtain a bondsman. The defendant did not adjourn his court on said l0th day of December, but intentionally held it open, as he believed he had a right to do, for the purpose of enabling Crandall to furnish the bond, which he did on the 29th day of January, 1889. A short time prior to the 29th day of January, the attorney for the plaintiff, by reason of a misunderstanding arising between himself and the attorney for Crandall in regard to a matter in no way connected with the case, ascertaining that...