Hoehne v. Trugillo

• Decision Date: 01 July 1869
• Parties: HOEHNE v. TRUGILLO.
• Court: Colorado Supreme Court

1 Colo. 161

HOEHNE v. TRUGILLO.

Supreme Court of Colorado

July, 1869

Error to Probate Court, Las Animas County.

Mr. W F. STONE, for plaintiff in error.

Mr. G W. PURKINS, for defendant in error.

HALLETT C. J.

The transcript of the record filed in this court contains informal memoranda of the proceedings of the probate court in the manner usually adopted by justices of the peace, together with copies of papers filed in that court. It is not in the form used by courts of record, and, indeed, is so unlike a record that it is difficult to apply that name to it. The statute gives to probate courts the character of courts of record, and declares that they shall be governed by the rules of practice and proceeding prescribed by law for district courts. In the words of Mr. Justice BLACKSTONE, 'A court of record is that where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony which rolls are called the record of the court, and are of such high and super-eminent authority that their truth is not to be called in question.'

In these days the parchment is discarded, but records still retain their character as a judicial memorial of 'high and super-eminent authority.' The importance of uniformity and perspicuity in the language of records was early appreciated, and great care was taken in selecting it. It is to be regretted that the same care has not always been observed, and that the familiar forms which have been sanctioned by long usage should be disregarded. The law overlooks many mistakes, omissions and ambiguities in records, when they do not affect the sense of the matter recorded, but we are not prepared to say that the approved forms in which the orders and judgments of courts are usually entered may be entirely ignored. A mere minute or memorandum of a proceeding is not a record. Leveringe v. Dayton, 4 Wash. C. C. 698.

And we have nothing more than memoranda in this transcript. For instance, the entry which is said to be a judgment is as follows: 'Judgment given by default by order of the court,' following which is a statement that the plaintiff below filed a note of a certain amount.

There is no statement that any sum of money was recovered by one party from the other, or that any thing was considered or adjudged by the court, or indeed any thing that is essential to a judgment. And yet it seems that execution was issued out of the probate co...