William P. Hale, Pl'ff in Error, vs. Henry C. Thayer, Def't in Error

William P. Hale, Pl’ff in Error, vs. Henry C. Thayer, Def’t in Error. the return of a Justice, on an appeal from bis judgment and decision; touching the matters appealed from, must be such as to shew that ,, his proceedings have'been tegular and in conformity with law. Tie- must return a transcript of his docket showing the state of the pleadings and proeeedings'before him, in order that the appellate Court may see whether his proceedings have been regular or not; ’and in ease his return does not show that he had acquired jurisdiction, an'd that his prbceedings had been regular and in' conformity "with his jurisdiction, his judgment will be reversed. Error to The'Circuit Court of Milwaukee County. It will be seen by the succeeding statement of the case, what proceedings had-been had therein, and the decision mf the Court in regard thereto. Downer, counsel for the plaintiff alone, appeared on the 'hearing of the case; and the following is the statement -of the case, as made by the plaintiff in error, and as argued before the Court: In this case it appears from the record that Thayer recovered judgment against Hale, before a Justice of th.e 'Peace, in March, 1846, from which Hale took an appeal. Soon láfter the párties étftered into-An ’agreement' under their hands and seals, to submit ' certain mattérs, and among them the judgment, to three arbitrators, and therein released all causes of action And demands, except those-submitted, and agréed tb discontinue all ’Suits then pending. The arbitrators met, heard the parties and made' their awards, on which judgment «¡vas entered in the District Court for Milwaukee County, at the Jtóne Term, 1846. At the next Octobér Terth, Thayer procured what the Court considered a transcript oí tho Justice’s judgment, though it is*n©t certified ás süch, to’be filed in ' the District Court, and- judgment of'affirmance with damages to be entered thereon, without the knowledge of Hale, who considered the judgment before the Justice merged in the’-award. At the next June Term, Hale filed Ms motion to satisfy the judgment and set aside the proceedings, accompaniéd with affidavits of himself and others, stating the submission, award and final settlement thereby of the judgment before the Justice. On the 25th day of November, 1847, “the Court, having heard the motion, made the following order: “It is'considered and ordered by the Court 'that said judgment be a-nd the same hereby is satisfied, and' all proceedings herein be set aside, and th'at skid plaintiff pay'the'costs.” On the 6th of December 'thereafter, Thayer filed affidavits stating'u.parol Withdrawal of ’the judgment before the Justice from the consideration Of the arbitrators at the hearing, and thereupon oh motion of Thayer the Court set aside or vacated the order satisfying the judgment: and in March, 1849, the Court overruled the motion to satisfy the judgment, and subsequently denied an application, by petition for a writ of audita querela, with costs. that the judgment before the Justice had been satisfied by the award. Barker vs. Judges'of Ulster, 4 Johns., 191. 20 Jo Jins., 294. The satisfaction being regularly entered, was there’ good cause for vacating it 1 The only reason was the parol withdrawal of the Justice’s judgment from the consideration of the arbitrators at the hearing before them; and even that is contradicted by the affidavits of the arbitrators. But if such parol withdrawal is admitted, it amounts to nothing in law. It was expressly decided in the case of Howard vs. Co.oper, 1 Hill, 44, that where a, submission to arbitrators is under seal, the pai’ties cannot by parol agreement at the hearing withdraw any item oj; claim embraced in such submission, and that nothwithr. standing such parol withdrawal, the award will be final; and embrace and bar the claim so attempted to be withdrawn. To the same effect is the case of Van Antwerp, vs. Stewart, 8 Johns. t 125, and Kyel on Awards. There being then no good reason for the decision va-. eating the satisfaction of the judgment, is such decision, one, from which a writ of error will lie I After the satisfaction of the judgment and before the decision vacating it, there was no valid and subsisting judgment against Hale but on,e in his favor for costs. But the decision vacating fhe, satisfaction nof only gets aside a judgment in favor of Hale for costs, but is, in effept, if not in form, a re-renditiipj, of the,judgment against hiip. Viewed in .this light, it, ^as as much a final judgment as any ever rendered. We apprehend that such a¡ clecision is clearly within our Statutg, which, provides that, “The Supremo Court shall have, ^nd exercise appellate jurisdiction only which shall extend; ta all matters of appeal,' errqr or pom- The first ej-ror assigned is* that the Coprt erred, in vacating the satisfaction of the judgment and. setting aside the judgment for costs in favor of Hale. There can be no doubt that the satisfaction was regularly entered j for the affidavits of Hale apd the threp arbitrators were at that time bpfore the Court, and proved plaint from the decisions, judgments o,r decrees of the District Courts in all matters of law or equity.” Stat. Jfis., 198. It has been repeatedly held that a writ of error lies from similar decisions. Sup. U. S. Dig., Er,ror, 18, 20,. 41. The second error assigned is, that the Court erred in overruling the motion of Hale to enter satisfaction of the judgment. The authorities above cited to show thpt the ■satisfaction, when entered, ought not to have been vacated, show that the Court erred in overruling the motion. The question, however, again comes up, vyill a writ of f rror lie from such a decision 1 Under statutes similar, and certainly not more comprehensive than ours, the Courts of Illinois, Alabama, Missouri and New Jersey, have decided that a writ of error would lie to reverse a decision overruling a motion to set aside or satisfy a judgment, or even to quash an execution. Page vs. Coleman, 9 Port., 275. Sloe vs. State Bank, 1 Scam., 428. Sup. U. S. Dig., Error, 18, 20, 34, 41, 49, 50, U. S. Dig., Error, 53. The third error assigned is, the refusal of the writ of audita querela. All the authorities are uniform that we are entitled to to thjs writ as a matter of right, upon the presentation of a .petition setting forth such a state of facts as the. petition coptains in this case, 3 Black, CQfi,t 400, Com-^ Dig., Audita Querkl'd,'A. ' Jóhnsoh vs. Hdrvy, ’4\Mass., 485. Eddy vs. Cochran, 1 Aik., 359. Lovejoy vs. 'Webber-, 10 Mass., 101. Brooks vs. Hunt, ITJohns., 484. U. 'S. Dig. Audita Querela, 8,11,13,15, Í8. The cáse of Eddy Vs, Cochrán, VAik.t 359, is precisely'such a'case ás wás presented'by 'fhe petition of Hále'to 'the Court below. It was decided in tbát case that the appellant against vidlóm the affirih'ance of the judgment had been obtained lay the-appellee without notice, and in violation of an agreement ■to-arbitrate the matter,'would be relieved On audita Cue-rda. There can be'ftb doubt'then but the Court erred in refusing the writ. And we'think as little ddtibt that a writ o'f error wilT'lie from such -decision 'refusing the application with'costs. For the w-rit can be "granted only by order of the Court'¡made in open Court and in granting or refusing i-t, the Court acts judicially. Com. Dig. AuditaQuerela, 'E. If so, then we are without remedy, unless a writ of er^ ror lies; for it is certain We codld not have a writ of'mandamus, that béing'never granted where an inferior Court has acted judicially, but only to '-compel it to act, without directing it hffw to act. '’People "ex 1rel. Dotighty v's. Dut-chess C. 'P., 20'Wend:, 658. 2:1 Wend., 22. The fourth error assigned‘is,'that the Court erred in Mitering'the judgment in‘the District Court, because there was no transcript of the Justice on which to enter judgment. There is no certificate to that Which was doubtless considered by the Court below as a transcript; and fdr that'reason the Court could not 'know whether it was >a. transóript-o-rnot, and was ndt authorized to enter judgment on it. [MAJORITY — Hubbell, J.] By the ¿barí. Hubbell, J. In this case, the retará qf the; Justice, filed by .the defendant in,the District Court of Milwaukee County, was. insufficient to warrant that, Court in entering judgment on the motion of the appellee. There is no certificate, that the; return contained a tran-, script of .the Justice’s, docket, nor did it .state the substance or any part of the plaintiff’s declaration. These are material and essential parts of a correct return; and their omission is fatal. The error assigned by the plaintiff, on this point, renders a reverse of the judgment, necessary. The judgment .of the District Court of Milwaukee County, entered on the thirtieth day of November, A. D. 1846, is hereby reversed with costs.