Idaho semi-weekly world. [volume] (Idaho City, Idaho Territory) 1875-1908, 1890-03-04

March 10, 1889, Is not regular upon
its face, aud in terms states that the
action therein taken is the result OF
a conclusion reached by two of the
members Of the Court; but it is not
declared to be the action OF the Court
by the Court and from its very APP
pearancc would perhaps suggest than
any person interested would be JUS
titled in seeking to investigate its
character. The intervenor, as we'll
as the Board OF County Commission
ers, In answering plaintiffs applica-
ton in the matter now at bar, rely
upon tho entry made on March 10Th,
and upon the remittitur sent down by
the Clerk OF this Court to the Court
below, us justlfying the position taken
by them, which is that the action over
the title TO SAID Office is still pending
in said Boise county.
PROFESSIONALLY the remit,itur SO
states. 1t is before us; and although
the entry Of March 10Th does not de-
clare that the conclusion therein
mentioned was reached by the
Court, the remittitur was to the effect
that such was the order, not of two of
tho Justices, but of the Court. Coun-
sci for plaintiff offer to show that the
entry OF March 10Th is not a record
OF this Court. They contend that
entry was made out of term time,
after the Court had adjourned, upon
the ordsr, not of the Court, but of
two OF its individual members. II
this statement were true, it would
not only not be record, but it would
be false entry in a record, and must
result in very serious consequences
to those who made it.
The plaintiff introduced those on
tries in the record appearing as OF
March 18th, and March 18th, and
there rested. When the intervenor
and defendant offer to Introduce the
entry of March 10th the plaintiff OBJ
jects, and offers to prove by parole
evidence the Irregularities above set
contend that the record of the Cour,
is conclusive and that 1t cannot be
assailcd; and numerous authorities
are cited in support of the PROPOSE
ton. On general principles, this
Court will not question the doctrine
1t is fact, however, that no ins,ru
mcnt is sacred il, in any manner
tainted with fraud. A judicial recorc
cannot be assailed; but this is diff
ferent proposition from denying tn,
existence or validity of record, Ii
other words, the records, once estab
lished, is unassailable, aud as tn,
honest record OF the Court, is abso
; lutely unquestionable. In Mcdowell
VS.. Potter, 40 Am, De-, 500, tn,
Court uses this language:
, A record is entitled to grea
sanctty in the law; but then, it mus
be an honest record. 1t is in vail
to talk of the danger of altering o
, explaining a record by parole. Ev
orything imbued with fraud mus
give way to credible sworn testimony
Note 5, p. 10 of Bigelow on fraud
reiterates this doctrine, and there dis
/ tinetly states that the question o
fraud may be raised so long as it wa
not question involved in tho tria
OF the cause; in other words, if i,
in any manner, tempered with tn
, rights OF the parties, the jurisdiction
of the Court, or the correctness @
tho proceedings at such time or il
p, such manner as that tho intereste,
! party was not able to DO heard t
protect himself.
I The general principle, therefore
is, that Judicial record cannot b
$ oontradieted by parole evidence. |
' is an equally well known, indeed a
5 elementary principle, that no instru
, ment, no record, no document, is vail,
j or can exist in the face Of fraud, cor
D ruption or dishonesty. But in tn
matter at bar is the applicant In posi-
ton to assail the record? We thin
? not. Without attempting to specif
. how such record may be assailet
g aud in what form the allegation
5 should be made to admit of the in
4 PRODUCTION of parole evidence to con
= tradict the record, il is sufficient t
$ say that to entitle the plaintiff to oil
: fer parole evidence in proof % so Sc
y rious a charge, and of fraud so REP
5 rshensible in It's character and so fai
n reaching in its effects, the allegatio
must be fully and fairly made and tn
issue clearly and positively rendered
e In this case, and under the alleys
Q tons of the complaint, the entry I
the 10Th of March cannot be assailsC
II This Court is called upon, then, I
e settle the status Of this case upon a
|. of its records here, tho effect of tn
l. action of this Court year ago, an
4, the rights of the parties under it. TIL
is opinion OF the Court as rendered la!
y March, duly fled on the 18th of sal
n month; and these various entries wi
&c be used to guide us in reaching
conclusion in the matter at bar.
,f The opinion declares that the a,
'ffof the Legislature, under which Il