State ex rel. Nesbitt v. Logan

Grason, J., delivered the opinion of the Court. The question presented by the first bill of exceptions is, whether the several writs of summons set out in this record, were admissible, upon an issue joined, upon a rejoinder of nul tiel record, to prove the record. It was contended by the counsel for the appellees, that the first summons issued in the cause, differed from all those subsequently issued in this, that, whereas the first did not state the cause of action sued on, all the others did; and that it did not therefore appear upon their face that they had all been issued in the same cause. It was also urged, that as the first summons issued under the Act of 1856, ch. 112, and the first section of the first Article of the Code, provided that all suits and actions, pending at the time of its adoption, should be proceeded with to final determination, and judgment entered therein, as if the Code had not been adopted, the summonses subsequently issued would also have conformed to the requirements of the Act of 1856, if they had been intended to be renewals of the first summons; but as they were in conformity with the provisions of the Code, they could not be considered renewals in the original cause.

We do not concur in these views. The parties, plaintiff and defendants, arc the same in all the summonses, and those, issued subsequently to the first, differed from it only in stating the cause of action and the amount claimed, so as to conform to the requirements of the 84th section of the 75th Article of the Code. The 1st section of the 1st Article of the Code was intended to prevent suits and prosecutions, pending at the time ⁸ of the adoption of the Code, from abating or being put an end to by its adoption. The mere change in the form of process, so as to. make it conform to the requirements of the Code, would not have the effect either of putting an end to the suit, which had been instituted prior to the adoption of the Code, or of making it a new and different action.

"We think that it became necessary, after the adoption of the Code, that all renewals of process in cases then pending should conform to its requirements, and that a change in the form of the process in accordance therewith, furnishes no ground for the objection to its admissibility in evidence. But it was also contended that the renewals of the writs of summons could only be proved by the record of the case, and that the renewals did not constitute such record. It is perfectly clear that all the proceedings in a cause, including the summons, returns, pleadings and all other proceedings, constitute the record, and are admissible to prove what has been done during the progress of the cause. Boteler & Belt vs. The State, use of Chew, 7 G. & J., 381 ; Phila., Wilm. and Balto.

R. R. Co. vs. Howard, 13 Howard’s Reps., 331. The issue to be tried was whether there was or not such a record as was alleged in the pleading; and all the proceedings which had been had in the cause up to that time, were admissible in evidence upon it, and if it appeared from an inspection of them by the Court that the first summons had been issued on the third day of December, 1859, and had been returned by the sheriff to the succeeding term, and that regular renewals had taken place to each succeeding term thereafter, then the issue must have been found for the plaintiff. Hazlehurst vs. Morris, 28 Md., 75 . The counsel for the appellees seem to have supposed that a record is nothing more nor less than a copy of the proceedings in a cause, certified under the hand of the clerk and the seal of the Court.

But we have shown that all the proceedings in a cause constitute the record, and are admissible upon the plea of nul tiel record. A transcript of the record only becomes necessary when it is to be used in ⁹ another Court than that in which the suit has been brought, and because the Court in which the proceedings have taken place will not part with the custody of its papers, and that the other Court may bo certified of the verity of the proceedings. But a transcript is never necessary in the Court in whieh the suit is brought, but the original papers are used as evidence. The plaintiff