Parsons v. Davis

Heydenfeldt, Justice, delivered the opinion of the court. Murray, Chief Justice, concurred.

This was an action upon a judgment of the Court of First Instance, the records of which belong to the District Court. The judgment which was the basis of this suit, was rendered without [425]any personal service on the defendant, and indeed without any service which by the laws then in force could be deemed an equivalent for personal service., There is, therefore, no dispute that the judgment of the Court of First Instance is invalid, and insufficient to sustain the present judgment, provided that the record of the first-mentioned judgment is properly brought before us.

This has been done by a certiorari from this court, and it is insisted by the respondent that it should have been made part of the record of this cause by a statement of it as evidence, or a bill of exceptions. The sole object of a bill of exceptions is to make a record of the special action of the court of what is not record by the general law.

By such action it attains the sanction and verity which enables the revising court to consider it. But that which is a record already, cannot receive any higher degree of sanction by being made record a second time.

Where, therefore, it appears from the declaration that the court below must render judgment simply by an inspection of its own records, it is obviously the most proper mode upon an appeal, to bring up the latter by a certiorari, in order that it may receive the construction of the appellate court, which is the only object of the appeal.

Judgment reversed, and cause remanded.

[The above opinion was filed December 5, 1853. December 12, an elaborate petition was filed for a rehearing of the case, and on the same day the court ordered all proceedings to be stayed until the petition could be heard.]