Farrand v. Bentley

‘’Campbell J.:

In this case, a motion is made to dismiss, on the ground that there is no case properly before the Court.

The cause could properly come into this Court for review, lipón a certificate of the clerk, in one of two methods: First, If it is a case agreed upon in the court below before judgment, under the statute; or, Second, If it is a case made and settled by the judge after judgment.

It is very evident that there was no case agreed upon before judgment, in the sense of the statute. That contemplates something which must be filed, and which can be certified by the clerk. The rules have always provided that 'no stipulation shall be binding unless reduced to writing •and signed by the parties or their attorneys. And any other construction of the statute would leave the whole matter open to dispute.

Is the case filed, a case settled after judgment according to the statute and the rules? It does not on its face '¿how, conclusively, or necessarily, that it was so intended. But in the absence of any thing tending to throw doubt upon its character, we should not be disposed to reject a paper >of this kind upon any technical niceties of form only. But we are not prepared to hold that if a clerk should certify up a paper of an ambiguous character, no showing can be allowed to inform us what it really is. Our jurisdiction ■can not be concluded by any such dubious acts.

In the present case, 'the judge who tried the suit, and whose name is attached to the document certified up, has informed us, by his certificate, that he never put his name to 'any thing which he supposed to be a settlement of a case under the statute, and that this instrument is imperfect in not "setting forth the whole facts as they existed. Objections are made to the reception of this certificate, and affidavits •"are offered to contradict it.

In the case of Sweetzer v. Mead, 5 Mich. • 33, we had

*284 occasion to consider the power of a judge of the circuit court to amend his finding, and we held that he could do so in his discretion. The practice of allowing amendments, either-before or after error brought, to apply verdicts to the counts, under which the evidence was all offered, has prevailed in England and in this country. In the case of Clark v. Lamb, 8 Pick. 414 , such an amendment was allowed upon the judge’s certificate, after error brought, and when the effeet of' the amendment was to cure the error which was alleged in the appellate court. In that case, and in Mathison's Adm'rs v. Grant's Adm'r, 2 How. 263 , a number of authorities are-cited, which show how universally courts have endeavored to preclude, in this way, errors of haste and inadvertence,, whereby, if not rectified, substantial justice would be defeated; and the cases show the same doctrine to apply in other cases of mistake or inadvertence. The case of Richardson v. Mellish, 3 Bing. 334, 336, 7 B. & C. 819, and 9 Bing. 125, is. very much in point. See also Ex, parte Justices of the County of Essex, 15 Eng. L. & Eq. 571. *

We think the certificate of the judge is entirely proper; .and that upon receiving such a notification, it is our duty,, whether requested by counsel or not, to remit the papers, to the clerk of the court below, for such action as they may require. — 3 Bing. 334. The certificate is sufficient evidence, that the document filed was not intended by the judge to-be regarded as a settled case, and does not contradict the former certificate. Upon such an intimation, we have no hesitation in ordering the papers to be sent back. The parties. *285 •can take such steps in the court below as that court shall 'determine to be proper under the circumstances.

Let an order be entered remitting the papers to the clerk 'of the Circuit Court for the county of Genesee, for the further action of that court.

The other Justices concurred.

As to the general power of amendment after judgment, see Emory v. Whitwell, post; after error brought, or appeal, Short v. Coffin, 5 Burr. 2780; Vslier v. Dansey, 4 Maule & S. 94; Petrie v. Hannay, 3 T. R. 659; Tillotson v. Cheetham, 3 Johns. 95 ; Cunningham v. Fontaine, 25 Ala. 644 . That amendments must be made, in such a case, by the inferior tribunal, Hutchinson v. Crossen, 10 Mass. 251 ; Cooper v. Bissell, 15 Johns. 318 ; Rowell v. Bruce, 5 N. H. 381; True v. Plumley, 36 Me. 466 ; Scribner v. Gay, 5 Mich. 511 ; Evans v. Norris, ante p. 69. And the papers may be re-, manded for that purpose. — Ibid.

A justice of the peace can not amend a judgment rendered by himself, even to correct an error of computation in rendering it (People v. Delaware Com. Pleas, 18- Wend. 558); though he would have the power of amendment in the same mannor. as courts of record, before judgment.— Near v. VanAlstyne, 14 Wend. 230 .