Davidson v. Farrell

• Decision Date: 01 January 1863
• Citation: 8 Minn. 225
• Parties: WM. F. DAVIDSON et al. vs. JAMES FARRELL.
• Court: Minnesota Supreme Court

Page 225

8 Minn. 225

WM. F. DAVIDSON et al. vs. JAMES FARRELL.

Supreme Court of Minnesota.

Error to district court, Ramsey County.

Points and authorities for plaintiffs in error: —

1. The records disclose neither summons, process, or other proceeding, whereby the defendant Davidson is in court, nor any pleading or issue whatever between the parties. The appearance of parties might be taken as dispensing with process, but it could not dispense with pleadings and an issue.

2. The direction of the referee, for a joint judgment against the defendant below, and his surety on the appeal bond, and the entry of such judgment, are erroneous. It will be seen that the judgment thus ordered and entered is a joint judgment, and, as against the surety, is entered before any default has been made in the conditions of his bond, and consequently before he has become liable or indebted thereupon, and it is also entered without any "process of law," pleadings, trial, or other legal proceedings of any kind, as against him. It is therefore in violation of a cardinal maxim of the common law, and of section 2, article 1, of our state constitution, — a principle which is also embodied in the constitution of the United States, and in those of every state in the Union. These constitutional provisions have been uniformly held to imply and include "actor, reus, judex," regular allegation and opportunity to answer, and a trial according to some settled course of judicial proceedings. And it has also been held that the provisions are a restraint on the legislative, as well as on the executive and judicial, powers of the government, and cannot be so construed as to leave the legislature free to make any process "due process" of law, by its mere will. 18 How. 272, and authorities there cited; 1 Curtis C. C. 311, et seq.; 4 Hill, 145-7. This judgment is also entered in violation of section 4 of the same article of our state constitution. See authorities above cited. This judgment is entered under the provisions of sec. 134, ch. 59, p. 518, Comp. Stat. This section, if it authorizes the entry of the judgment in this case, is clearly unconstitutional. See authorities above cited. See also Hughes v. Hughes, 4 T. B. Mon. (Ky.) 43 Litnell's Principles Law and Eq. 63.

Lorenzo Allis, for plaintiffs in error.

Smith & Gilman, for defendants in error.

ATWATER, J.

The paper-book in this case contains an affidavit for appeal in a justice's court, as required by sub. 1, sec 123, p. 517, Comp. Stat., an appeal bond, acknowledgment and justification. Then the statement, that "at the general term of the district court, by consent of parties, the cause was referred to James Gilfillan, Esq., who made the following report." Then follows the title of the court and of the cause, and the report of the referee, finding in favor of the plaintiff in the sum of fifty-one dollars and twenty-five cents, as the agreed price for the use of certain jack-screws, and damages thereto, and directing judgment to be entered accordingly. Then follows the entry of judgment, as directed by the report, against the defendant Davidson, and John Haycock, his surety on appeal, for the amount found by the referee, with interest and disbursements. The paper-book is indorsed with the names of the parties as plaintiff and defendant in error respectively, but no writ of error accompanies the papers, nor is there any certificate of the clerk, that the foregoing are a transcript of all the papers on file in the cause, nor that the foregoing contains an account of all the proceedings in the cause. It is claimed by the plaintiff in error, that the record discloses neither summons, process or other proceeding, whereby the defendant Davidson is in court, nor any pleadings or issue whatever between the parties, and that the finding of the referee, his direction for judgment, and the judgment itself, are unauthorized and baseless.

From the papers before this court it may be inferred that this action was commenced before a justice of the peace, and an appeal taken from the judgment of such court, to the district court. If the paper-book presented to this court is to be considered a record of anything, it shows that a judgment was rendered in the district court against the plaintiffs in error. In a court of general jurisdiction, every intendment is made in favor of the regularity of its proceeding and the validity of its judgments, and it devolves upon the party alleging error, to show the same affirmatively by the record. Suppose in this case, the plaintiff in error had made up his paper-book by simply copying the record of judgment from the entry of the same by the clerk in his book, and come into this court and ask to have the same reversed, on the ground that the same appeared to be unauthorized by the record, would this court be justified in reversing the same, without evidence that the whole record was before the court? Would not this court be bound to intend that the judgment was entered upon regular proceedings in the action, until the contrary was made affirmatively to appear? In this case, the plaintiff in error has gone a step further, and in addition to the entry of judgment, has inserted in his paper-book the report of the referee, and asks that the judgment be reversed, because the paper-book does not show any pleadings between the parties. I think it devolves upon the plaintiffs in error to show, affirmatively by their record, that there were, in fact, no pleadings or issue, and that the court is not bound to presume that the...