Moseley v. White

This suit was brought in the Circuit Court, by the present plaintiff, in October, 1831, to recover of the defendant the amount of a decree of the County or Orphans’ Court of Dallas.

The declaration, in allusion to the cause of action, charges that the plaintiff, “ by the consideration of the honorable the Orphans’ Court, held within and for the county of Dallas,” recovered a decree against the defendant, as administrator of E. Lane, for eight hundred and sixteen dollars, as by the record now remaining in said court, appears, he. To which the defendant pleaded nul tiel record.

A bill of exceptions shows, that on the trial, the plaintiff offered in evidence what purported to he a record, of the 7th of April 1828, showing a final settlement of the intestate’s estate, by White, the administrator, and a decree against him for the sum claimed; together with a long catalogue of debts allowed to oilier creditors, all appearing to have been scaled, as in ease of. insolvency. To this is appended the certificate of “ 3. D. Craig, as clerk of the County Court of Dallas,” that the same is a true transcript of the settlement, &c. “ as it is of record on minutes B, of the Orphans’ Court, in my office That the Circuit Court thereupon decided there was no such court known to the laws of this state, and rendered judgment for the defendant, in this judgment it is contended the court erred.

The objection which was sustained to the record, is ufider-stood to be, that the transcript offered in evidence, is variant from fee record described in the declaration, as respects the style or title oí the court in.which the decree was rendered — that it ought to have been described as a decree of the “ County Court,” instead of the “ Orphans’ Court” of Dallas county. To under. *415stand the nature of this supposed variance, it is necessary to refer to several parts of the statute law creating and modifying the county court, and regulating its powers and duties. As early as 3806 and ’7, the county court was organized, consisting of five justices of the peace, and of the quorum, one of whom was commissioned “ chief justice of the orphan’s court.” They were authorised to hold the county court proper, and at the same time to hold and keep a court of record, to be styled and called “ the orphan’s court of the said county,” with full jurisdiction of all testamentary and other matters pertaining to an orphan’s court, or court of probate, within their respective counties. It was also provided, at this earl}' day, that this chief justice should cause to be kept by the register of the orphan’s court, a docket, &c.:— That the clerk of the county court should, by virtue of his-office, be “ register of the orphans’ court” of the same county; “ should keep and preserve all records, files, papers, and proceedings of the said court as an orphan’s court, senarate and distinct from , ■, , 1 ,. ’ , „ the records, files, and proceedings ol trie county court, &c.a

In 1819, this court was remodelled, by the establishment an “inferior court,” consisting of five justices, styled justices of the county court. To this court, which in some parts of the' same statute is called the county court, was given, besides the jurisdiction previously vested in the county court, and orphans’ court, concurrent jurisdiction with the circuit courts, in actions of debt and assumpsit. It was authorised, at its second and fourth annual terms, to exercise only, the jurisdiction previously belonging to the orphan’s court; and the clerks of the inferior courts were declared to be the clerks of these intermediate courts for the adjustment of orphan court bnsincss.b By the same act these justices were authorised to elect one of their own body as “ chief justice.”

I111821, this court was again remodelled, and styled the “county court,” and was directed to be holdcn by one judge only. It was then also provided, that the county court thus organized, and the judges thereof respectively, should be vested with all the powers previously exercised by the said county and inferior *416coufts, and the chief justice thereof, except such as should be’ otherwise directed. It was then farther directed, that the clerks of the inferior courts should be the clerks- of these county courts respectively, and perform all the duties as such ; should have custody of the records and papers of the orphans’ and county courts previously established in their respective counties. This appears-to have been substantially the organization of the tribunal in question, in 1828, when this decree wasrendered — that the court existed as a county court, to be holden by only one judge, and in this court was vested all the jurisdiction previously exercised by the original county court, orphans’ court, and chief justice thereof; by the inferior court which succeeded it, and the chief' justice thereof- This jurisdiction, as we have seen, embraced,besides cognizance of particular common law actions, (and which was extended by this latter act,) all the powers and duties appropriately incident to an- “ orphans’ court.” It also appears, that the clerks of the present county courts, are charged with- all the subsisting duties heretofore required of the clerks of the county ' and inferior courts,, and-of the register of the orphans’ court; and that among the duties is included that of keeping and preserving “all records, files, papers,-and-proceedings of the said court, as an orphans’ court, seperate and distinct from the records, files and proceedings of the county court»” This direction- of the law may well account for the form and substance of the certificate of the record before us, and explain why the clerk of the county court should have certified to a true transcript, as it is of recordon minutes B, of the orphans’ court in his office.

It may also be remarked, that in 1830, and before the institution of this suit, the legislature acknowledged at least the nominal existence of this court, by directing that “ all decrees made by the orphans’ court on final settlements on the accounts of executors, administrators, &c. shall have the force and effect of judgments at law. And again, in 1832, which was subsequent, have in two instances made similar recognitions, which may be rer garded as a legitimate interpretation of the statutes referred to on this point.a

*417But ifit be conceded that the description of the court in the declaration, and in the clerk’s certificate, is not strictly and tech-nieally correct; that since the reorganization of the court in 1821, its true title in general, is that of the county court; and when liolden for the settlement of decedents’ estates, and other orphans’ business, should be styled the “ county court,” or “ county court sitting as an orphans’ court,” it docs not follow, that, the description given was not sufficiently certain. The certainty required in pleadings generally, is defined to be, such as “ may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court who are to give judgment.”a Certainty to a certain intent, in general, is held to mean, what upon a fair and reasonable construction may be called certain, without recurring to possible facts, which do not appear; and this is required in declarations, replications, indictments, &c.b It is also said less certainty is requisite, when the law presumes that the knowledge of the facts is peculiarly in the opposite party.c

It is true, that in declaring on judgments, great certainty is required in the statement or description of the judgment; and a material variance, will in general, be fatal. It has been held, that in stating the amount of the judgment, the omission of only a penny', is a fatal variance, and cannot be cured by a remüíüt.d In principle, there can be no difference between the effect of a variance to the amount of one penny, or of one or more pounds or dollars ; in either case the sum is clearly and obviously different. .vBut a slight inaccuracy in the description of the court, which can leave no doubt upon the mind as to the reference, has not necessarily • the same effect, and has been viewed by the courts of the highest authority in a different light. It has been ruled, that where a declaration in an action for a malicious prosecution, alleged that the defendaik caused the plaintiff to be indicted at the “ general quarter sessions” of the peace for Mid-dlesex, and the record stated the indictment to have been found at the “ general sessions,” it was held to be sufficient, the of-*418fence being cognizable at such general sessions.a. Also, that a bill of Middlesex is well described as a “precept f the King.”b

On the authority of these and other cases, Stark T maintains, ,j.iat u wjjere it is necessary to allege a court having 'udicial authority, it is not essential that the style set out in \ e record. A’ . . , J ’ should be exactly copied.’c

In the Crown cases cited in argument, where, as co, 'ended, the greatest strictness should be observed, the English ourts have held, that slight misdescriptions which could not mis. ad, would be disregarded — such as to describe the court as ‘ he court of the King’s Palace at Westmister,’ when in the record was called ‘ the court of the King’s Palace of Yfestminster;’ or to aver that the cause came up to be tried by a jury of the oun-iy, when the record stated that the jury came of the neighh rhood of Westminster, the cause having in fact been so tried, ; d no county being mentioned in the record. These discre^ urces were held to furnish no objection to the proceedings.d

In this case, the description of the record, both in the deck ation and certificate of the- clerk, is believed to be sufficiently cei tain; that the orphans’ court in this state can be understood as no other than the “ county court” while exercising the jurisdiction of an “ orphans’ court,” by which latter description or title it is recognised and designated by several existing statutes ; and that no one can doubt as to which tribunal the record belongs.

The judgment of the Circuit Court is therefore considered erroneous, and must be reversed; but as the record contains other issues, some of them requiring trial by jury, and which have not been disposed of in the Circuit Court, the cause is remanded for - further proceedings.