Mottu v. Fahey

Fowler, J., delivered the opinion of the Court. This is an action of ejectment. The plaintiff, who is the appellee here, claims under a deed which sets forth a merely nominal consideration from one Michael Kelly, dated subsequent to the deed, under which the defendant, Theodore Mottu, claims. This is the second trial of this action brought by the plaintiff to recover the property in question.

In the first trial the plaintiff claimed, as he does now, under his deed from Kelly, and the defendant rested his ³⁹¹ -case upon certain magistrate’s judgments against said Kelly and the proceedings thereon, which had been recorded and returned to the cleric of the Superior Court under the Code of 1860, Article 83, section 9. The defendant’s title rested on the validity of the proceedings so recorded, and on the appeal taken from the judgment in the first trial it was held that the record of the magistrate’s judgments and the proceedings thereon were fatally defective, because there was nothing therein to show that Kelly had ever been summoned, and tliaf, therefore, the judgments against him, the sale of the property in question to the defendant, Mottu, in this case, and the deed to him by the constable, were all void. Fahey vs. Mottu, 61 Md., 250 . The cause having been remanded by this Court for a new trial, the defendant, Mottu, thereupon applied to the Superior Court for leave to withdraw the ■original papers in the magistate’s cases and to re-file them with additional returns to remedy the defect pointed ■out by this Court in 61 Md., 250 , supra, namely, a failure •of the record, as returned, to show that the defendant Kelly had been summoned.

On the 28th June, 1888, leave was granted as prayed, and subsequently, on the 10th of September following, the •original papers, with the necessary additional returns, were filed in the Superior Court, from which it appeared that Kelly had been duly summoned. On the 21th July last the case was again tried in the Court of Common Pleas, and the question is presented whether the record of the proceedings in the magistrate’s cases as amended and re-filed are, as the appellee contends, utterly null and void, or whether such record is legally admissible ■evidence in support of Mottu’s title. The objection made in the former case to the admissibility of the record in evidence, and to the validity of the judgments was, that it did not appear from the proceedings that a summons had been issued. And while ³⁹² it is not denied, and, in the face of the explicit testimony of the constable, cannot be denied, that the defendant was in fact summoned, as now shown by the amended or corrected record of proceedings before the-magistrate, it is contended that the Superior Court has no power to authorize any amendment of the record of' such proceedings.

Neither reason nor authority was suggested for this position. It would seem but reasonable that the Court which takes jurisdiction, to which the sale is reported, and by which it was required, under the provisions of the Code then in force, to be ratified, should have the same control over the record of proceedings returned by the magistrate as over its own records. When returned to the Superior Court by the justice, his-proceedings became a part of the records of that Court, and the amendment authorized did nothing but allow the addition of a necessary part of the record, which had been improvidently omitted. If, as contended by theappellee, the Superior Court has no power to order the amendment, because when it passed the order of ratification of sale it was functus officii as to that case, and if,, as was also suggested, the justice was equally without power after making his return to the Court, no correction or amendment whatever can be made