Emery v. Brann

• Decision Date: 31 March 1877
• Citation: 67 Me. 39
• Parties: DANIEL F. EMERY et al. petitioners v. CHARLES V. BRANN et als.
• Court: Maine Supreme Court

67 Me. 39

DANIEL F. EMERY et al. petitioners v. CHARLES V. BRANN et als.

Supreme Judicial Court of Maine.

March 31, 1877

ON REPORT.

PETITION FOR A WRIT OF CERTIORARI, to bring up and quash the proceedings of three justices of the peace and quorum, in admitting Charles V. Brann to the benefits of the oath provided in R. S., c. 113, § 30.

The petition did not set out the record or assign errors apparent therein; but did recite minutely and at length the judgment execution, its delivery to the officer, and proceedings thereon, embracing the proceedings before the three justices. The petition, copy of the record, answers of the respondent and the original papers referred to, made part of the case.

The petitioners offered the original papers, showing the proceedings before the magistrates and proof of identity to impeach and complete the record, and to show fraud, and that injustice was done; also the deposition of S. J. Walton, one of the magistrates who acted but did not sign the record, and other proof for same purpose.

If the original papers or other testimony are competent to be introduced to show error in the record of proceedings, or fraud, or that injustice was done, the case to stand for trial; otherwise, judgment for respondents.

The petitioner alleged misconduct and fraud of the magistrates and offered evidence thereof dehors the record, and closed with the following " objections to the legality and validity of the proceedings before the magistrates touching the examination and disclosure, and all matters relating thereto."

" I. No legal citation.

II. The magistrates excluded important and material witnesses and important and material testimony of witnesses present, and declined to and did not hear testimony offered which would have prevented the debtor from taking the oath before referred to.

III. The debtor's examination and disclosure was not full and complete, but unfinished and incomplete for the various reasons herein before stated.

IV. The debtor not having made the disclosure provided for and contemplated in R. S., c. 113, the justices were most manifestly in error in administering the oath to Brann.

V. The justices were in error in not allowing and requiring the debtor to answer all interrogatories tending to show the real condition of the business of the debtor, and his ability to pay the debt due the creditors, and interfering with the examination by the counsel for the creditors, by limiting the time in which the examination must be closed, whether complete and thorough, or not."

The application to the justice, which was made, by reference, a part of the citation, commenced and continued so far as to raise the legal objection thereto, as follows: " To J F. Holman, esquire, one of the justices of the peace in and for the county of Somerset: whereas I Charles V. Brann, of Madison, in said county, have been arrested by Josiah Tilton a deputy sheriff under J. H. Chapman, sheriff of said county, on an execution which issued from the county of Cumberland," & c.

H. Knowlton and W. J. Knowlton, for the petitioners.

The question presented for the consideration of the court by the agreed statement, is not whether the particular evidence offered is competent for the purposes indicated, but whether any evidence, however clear and decisive, is admissible to establish either of the allegations.

The court is to determine whether fraud may be shown by any of the evidence offered or any which might be offered, and whether the record may be shown to be incorrect, by any of the evidence sought to be introduced, or by any testimony, oral or documentary.

The court is to determine in this case, whether gross injustice may be done by a court of inferior jurisdiction, and the injured party be entirely without remedy.

Fraud vitiates all proceedings. Brooms Legal Maxims, 736. If the proceedings were fraudulent or without jurisdiction from any cause, then they are void absolutely.

That the magistrates had no jurisdiction, and that the proceedings were fraudulent, that the record is not in accordance with the facts, and that great injustice was done, the petitioners claim to show by proper evidence in a court of competent jurisdiction to try and determine the rights of the parties.

T. B. Reed, for the respondents.

A petition for writ of certiorari is a proceeding well defined in its character and limitations. It is to quash a record for errors in the record itself. It is not an appeal or a new trial.

The proper practice is for the petitioner to set forth the record in his petition, and to specify the errors in the record on which he relies. On the part of the petitioner no evidence can be primarily introduced. The court say in Rutland v. Co. Com. of Worcester, 20 Pick. 71, 77, 78," A petition for a writ of certiorari is well understood to be addressed to the discretion of the court. When the record is before the court upon the return of the writ, the court will look only at the record; for this reason it would be futile to admit evidence to contradict the record, on the petition for a certiorari; but it being within the discretion of the court to grant or refuse the writ, evidence extrinsic to the record may very properly be received to show that no injustice has been done, and that a certiorari ought not to be issued. The petitioners in the case before us, will in the first place exhibit the record and point out in what particulars they deem it to be erroneous or defective; and then the respondents may prove by extrinsic evidence, that no injustice has been done, that if the proceedings shall be quashed, the parties cannot be placed in statu quo, or that for any good reason a certiorari ought not to be granted. If such evidence shall be offered by the respondents, the petitioners will of course have a right to rebut it by like evidence." In other words the petitioner is bound by the record. The respondent, appealing to the discretion of the court, may show by extrinsic matter, that the certiorari ought not to be granted, even if there were errors, and the petitioners may rebut that showing, and that is all that can be done.

Here the petitioner admits, not in terms but by force of the stipulation in the last paragraph, that there are no errors in the record. He does not desire to quash the record but to impeach it. That cannot be done in this way. It is true after a general way, that fraud vitiates all things. But even in the cases where fraud can be set up it must be in proceedings which permit proof. If this were a proceeding to reverse the judgment, proof of fraud might then be admissible. But it is not a proceeding to reverse the judgment; it is a proceeding to quash a record. To propose to impeach a record by a proceeding to quash it, is like offering evidence on a demurrer. On a motion to quash an indictment no one has ever yet been heard to prove fraud on the part of the grand jury. The best test of petitioner's position is the absurdity...