Greff v. Fickey

Bartol, C. J., delivei’ed 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 ⁷⁷ order passed on tbe 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 bad 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 tepn 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, haying 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 . ⁷⁸ 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. Inloes, 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;) Hollingsworih 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 ⁷⁹ 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