Greff v. Fickey

Decision Date20 January 1869
Citation30 Md. 75
PartiesJOHN P. GREFF, ERNST GREFF, and others, v. FREDERICK FICKEY, SR., FREDERICK FICKEY, JR., and others. SAME v. SAME.
CourtMaryland Court of Appeals

The cause was argued before BARTOL, C.J., NELSON, STEWART and MILLER, J.

Julian I. Alexander and Thales A Linthicum, for the appellants:

The pleas of the defendant were properly stricken out as they had not been sworn to. Act of 1864, ch. 6 sec. 7.

The omission of the clerk to enter on the docket that the pleas were stricken out, and judgment by default entered for want of affidavit to the same was a clerical misprision, which the Court had power to rectify and ought to have amended. Short vs. Coffin, Ex'r, 5 Burr., 2730; Mara vs. Quin, 6 Term Rep., 1; Smith vs. Fuller, 2 Strange, 786; Usher vs Dansey, 4 M. & S., 94; Duvall vs. Wells, 4 H. & McH., 164; Fisher vs. State, 1 H. & J., 416; Kent vs. Lyles, 7 G. & J., 73; Bank of the U.S. vs. Lyles, 10 G. & J., 326; Byrne vs. McPherson, &c., 12 G. & J., 157; Kiersted vs. Rogers & Garland, 6 H. & J., 282; Chapman vs. Davis, 4 Gill, 166; Smith vs. Morgan, 8 Gill, 138; Weighorst vs. The State, 7 Md., 442; McCoy vs. Boyle, 10 Md., 392; Boteler and Belt vs. The State, &c., 8 G. & J., 359.

A final judgment having been rendered, the Court had no authority to stay the proceedings, thus virtually setting aside the judgment. Sherwood vs. Mohler, et al., 14 Md., 564; Henderson & Ross vs. Gibson, &c,, 19 Md., 234; Mailhouse vs. Inloes, et al., 18 Md., 328; Graff & Gambrill vs. Merchants and Miners' Trans. Co., &c., 18 Md., 364; Green vs. Hamilton, 16 Md., 317.

If the judgment is to be taken from the plaintiff it ought to be on equitable terms. Montgomery vs. Murphy, 19 Md., 576.

J. Dean Smith, for the appellees.

BARTOL C.J., delivered the opinion of the Court.

The first appeal in this record was taken from the order passed by the Court of Common Pleas, on the 22d day of May, 1867, staying the writ of execution, and imposing certain terms upon the parties. The second appeal is from an order passed on the 22d day of October, 1867, overruling the motion of the appellants to have certain docket entries of proceedings in that Court amended and completed, as suggested in the motion.

The second appeal will be first disposed of. It appears from the record that after the first appeal had been taken and the transcript sent up, a writ of diminution was issued by this Court, on the suggestion of the appellees, for the purpose of having some alleged errors therein corrected. Before the corrected record was sent up under the writ of diminution, the motion to have the docket entries amended and completed was made, and was accompanied with an affidavit of one of the attorneys of the appellants. It was overruled, as appears by the order, because the Court was of opinion "that the term in which said proceedings are alleged to have occurred having passed, and the Court of Appeals, upon the writ of diminution in the cause issued by it, having ordered that the docket entries be returned as they actually stand upon the docket, it would be improper to grant said motion."

We think the learned Judge was in error as to the purport and design of the writ, and his powers and duty in the premises. If satisfied either from his own knowledge of what had actually occurred in the progress of the cause--or from evidence adduced--that the docket entries as made by the clerk were erroneous or incomplete, it was within his power and his plain duty to have them corrected, so that a full, true and perfect transcript of the whole proceedings as they actually occurred in the progress of the cause might be sent up, in obedience to the writ. If we were at liberty on this appeal to consider only the reasons assigned for overruling the motion, we should be compelled to reverse the order of the 22d of October. But the subject matter embraced in the motion is one which rested exclusively in the judgment and sound discretion of the Court below, and its decision thereon is therefore final and cannot be reviewed on appeal. Howard and Wife, et al. vs. Waters, et al., 19 Md., 529, and Waters vs. Waters, 26 Md., 53.

The Court of original jurisdiction, in which the proceedings were had, must of necessity decide as to the correctness of its own records; this Court has no power upon an appeal either to review its decision, or to undertake to determine in what respect a record transmitted to us is erroneous, or to correct it; to do so would be to violate one of the plainest maxims of the law, which forbids the verity of a record to be impeached by extrinsic proof.

The appeal from the order passed on the 22d of October, 1867, must be dismissed.

We now proceed to consider the first appeal, taken from the order of the 22d of May, 1867.

The first question presented is whether this Court has jurisdiction to entertain the appeal.

Since the decision of Munnikuyson vs. Dorsett, 2 H. & G., 374, affirmed in Green vs. Hamilton, 16 Md., 317; Mailhouse vs. Inoles, 18 Md., 328, and Graff & Gambrill vs. The Merchants and Miners' Trans. Co., 18 Md., 364, it must be considered as settled that an appeal lies from an order striking out a judgment, passed after the lapse of the term in which it was rendered.

In this case an execution had been issued upon the judgment, which was stayed by the order appealed from. The effect of the order was to deprive the appellants of the benefit of the execution; that a party aggrieved by such an order has the right of appeal is settled by the cases of Harris vs. Wilmer, 5 H. & J., 2, (note;) Hollingsworth vs. Floyd, 2 H. & G., 87, and Graff, &c. vs. M. & M. T. Co., 18 Md., 364, above cited.

The appeal being properly before us, it remains to examine the reasons assigned in support of the motion to strike out the judgment. These are based upon supposed irregularities appearing on the face of the record, and in considering them, we shall confine ourselves to the record as returned under the writ of diminution.

The suit was instituted by the appellants under the Act of 1864, ch. 6, to the May Term, 1866. No objection is made to the sufficiency of the declaration, or of the affidavits and vouchers filed therewith; these were in conformity with the eighth section of the Act. The defendants failing to appear on the rule day, a judgment by default was properly entered against them as provided by the fifth section.

The alleged irregularities in the proceedings are supposed to consist:

First. In the omission to send with the copy of the nar. and the summons, a copy of the affidavits filed or some notice thereof.

Second. In the failure or omission to strike out the judgment by default, entered on the 18th of May, upon the appearance of the defendants before the first return day thereafter, as provided by the fifth section.

Third. That no judgment by default for want of sufficient pleas properly verified, was in fact entered or extended; but that the only judgment entered, was the judgment by default for want of an appearance, which was erroneously allowed to stand, and which was the judgment...

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7 cases
  • Cave v. Elliott
    • United States
    • Court of Special Appeals of Maryland
    • 27 Enero 2010
    ...of the whole proceedings as they actually occurred in the progress of the cause might be sent up in obedience to the writ. Greff v. Fickey, 30 Md. 75, 77 (1869). The purpose of a nunc pro tunc order is also "`to correct a clerical error or omission as opposed to a judicial error or omission......
  • IN RE TIMOTHY
    • United States
    • Maryland Court of Appeals
    • 7 Agosto 2003
    ...so change the Record as to make it inconsistent with the facts, or make it state what is not true." (Citations omitted) See Greff v. Fickey, 30 Md. 75, 77 (1869) ("If (the judge) [is] satisfied either from his own knowledge of what had actually occurred in the progress of the cause, or from......
  • Smith v. Wallis-McKinney Coal Company
    • United States
    • Arkansas Supreme Court
    • 20 Octubre 1919
    ... ... v. State, 103 Ark. 4, 145 S.W. 542; Wight, ... Petitioner, 134 U.S. 136, 33 L.Ed. 865, 10 S.Ct. 487; ... Waters v. Engle, 53 Md. 179; Greff ... v. Fickey, 30 Md. 75; Cribb v ... State, 118 Ga. 316, 45 S.E. 396; Balch v ... Shaw, 61 Mass. 282, 285; Christisen v ... Bartlett, 73 Kan ... ...
  • Dutton v. State
    • United States
    • Maryland Court of Appeals
    • 1 Mayo 1914
    ...then applied to the lower court to have the record in that court corrected, so as to have what occurred properly stated. In Greff v. Fickey, 30 Md. 75, after a writ diminution was issued by this court, for the purpose of having some alleged errors in the record corrected, a motion was made ......
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