Calaway v. Calaway — 3 Del. 84

Majority

p. 84

MARY CALAWAY, defendant below vs. LEVIN CALAWAY, plaintiff below.

Headnote

On certiorari, proof allowed against the record, of a fact which the justice is bound, but refuses, to enter on his record; as that a party appeared; or that the cause was adjourned to another day.

Proof in such cases is taken by depositions.

Certiorari to a justice of the peace. Sunimons issued and re

p. 85

turned, and' judgment by default, for want of appearance of defendant on 9th May, 1839.

Affidavit by the defendant below, stating that she did appear before the justice on the 9th May, 1839, and the cause was regularly adjourned to another day; when she again appeared, and the cause was adjourned several times, she always appearing. After the lapse of fifteen days from the timé of her first appearance, and when the time had passed in which the defendant might have taken an appeal, she was informed that judgment had been entered against her by default on the 9th May.

Frame and Comegys, for defendant below,

on this affidavit, moved the court for leave to contradict the justice’s record; on the ground that the justice, by antedating his judgment, had deprived the defendant of her right to appeal. They cited Bailey vs. Lvff, ( 2 Harr. Rep. 292 , n.,) in which case proof dehors the record was admitted, on the ground of necessity; the party having no other remedy or mode of bringing the .ground of exception before the court. The party has a right to an appeal from the judgment of a justice, provided such appeal be taken within fifteen days after it is given. Jf the justice then can, by antedating the judgment, after having adjourned the cause to another day, and so from day to day until the time for an appeal had elapsed, exclude the party from her remedy by appeal, there is no mode by which this error can be brought before the court, and this fraud prevented, but by allowing the party to contradict the record.

Laxos, opposed the motion.

The act of assembly requires the justice to set down on his record a history of the cause in every step of it, for the very purpose that the parties may have any errors or impropriety in the cause below corrected in this court. The power of correcting the errors of these magistrates is a very important one, and ought to be exercised so as to prevent oppression or fraud, as well as to correct mere mistakes in law. And if the case arises in which the fraud or oppression consists in not placing on the record that which the law requires should be put down, the party must from necessity be permitted to prove such matters dehors the record. On this principle the Supreme Court, in the case cited, received proof that the party had tendered a plea which the justice refused to receive, and refused to enter on the record. For the same reason, if the justice made one or more adjournments of this cause, without setting them down on the record, and then antedated the judgment and entered it

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as of the first day of appearance, by means of which the defendant was deprived of her right of appeal; it will be impossible to prevent this wrong, but by allowing proof of the facts otherwise than by the record.

Laws, for plaintiff below.

Frame and Comegys, for defendant below.

Testimony ordered to be taken by commission and depositions.