William R. Keen, Elias E. Johnson and William J. Barnett, Appellants, vs. David Jordan, Administrator, &c., Appellee, 13 Fla. 327

RANDALL, C. J., delivered the opinion of the Court. The appellee filed a bill in chancery in the Circuit Court of Columbia county, praying that the record of a judgment recovered at law against the appellants in the Circuit Court of that county, and an execution issued thereon, which had been destroyed by fire, might be re-established or supplied by copies thereof, and that a copy of the execution'might be placed in the hands of the Sheriff in lieu of the original. The bill alleges, that in April, 1866, the complainant “instituted an action of debt against William R. Keen, Elias E. Johnson and William J.

Barnett,” &c. The prayer for process is as follows: “ Your orator prays that the usual process may issue to the said defendants according to the rules and practice of this honorable court.” The bill is signed by a solicitor but not by counsel. The appellants demurred to the bill on the ground—1st. That they are not proper parties to the bill; and 2d. That the complainant has not stated a case entitling him to relief in this court, for that he had a full and perfect remedy at law.

The demurrer is signed by solicitors, but has no certificate of counsel that “ it is well founded in point of law.” The record states, that the “ cause coming on to be heard ■tapón the demurrer of the defendants to the complainant’s bill, and the court having heard the arguments of counsel for both parties therein, it is ordered, and adjudged, and decreed, that the demurrer be and the same is hereby overruled.” Prom the order over-ruling the demurrer, the defendants appealed. I.

The appellants call attention to the fact, that the prayer for process of subpoena does not contain the names of these defendants, or of any other persons, and that therefore the bill is demurrable. . Rule 23 requires that “ the prayer for process of subpoena in the bill shall contain the names of all the defendants named in the introductory part of the bill.” An omission of the names of the defendants against whom process of subpoena is prayed, is a defect in the frame or form of the bill, which may be taken advantage of by demurrer. Story’s Eq. Pl., § 527, 528, 642; Mitford’s Eq. Pl., 113.

This bill is clearly liable to this objection, as the names of the persons' intended to be made defendants in chancery are not named as such, either in the introductory part or in the prayer for process. The appellee however suggests in his brief, that the demurrer was properly overruled, because it was not accompanied by the certificate of counsel, that in his opinion it is ' well founded in law, as required by the 31st Rule of Chancery Practice. This objection of the appellee relates to an irregularity of which he should have taken advantage by motion to strike off the demurrer.

Upon an appeal, parties cannot take advantage of any irregularity which they have either consented to or waived. 1 Barb. Chy. Pr., 396. Here the parties proceeded to argument and judgment upon the demurrer, thus waiving this irregularity. The demurrer was overruled by the court, not struck off or disregarded!. Where a defendant is guilty of an irregularity in filing á demurrer, the plantiff may, on application, obtain an order to take the demurrer off the files, but not that the demurrer be overruled. 1 Dan. Chy. Pr., 617-18.

If the point may be made at this stage, the defendants might also insist that the complainant’s bill (which is not signed by counsel) be struck off the files. In Gove vs. Pettis, 4 Sand. Chy. R., it was held that a demurrer could not be taken for an omission of the signature of counsel or solicitor to a bill, but that it was a fit subject for a motion to take the bill from the files; and in French vs.

Deer, 5 Vesey, 547, where a bill was demurred to for other causes, the Lord Chancellor abruptly refused to examine the bill, because it was not signed by counsel, and ordered it struck off, and the plaintiff to pay costs. Daniell’s Chy. Pr., 588, and Barb. Chy. Pr., I, 44, say, however, that the want of signature of counsel to the bill is ground of demurrer. Either practice-seems to be tolerated. The application to strike off the demurrer should have been made to the court below, where the irregularity might have been cured by the parties. II.

The second ground of demurrer is, that the plaintiff-’ is not entitled to relief upon the case stated in the bill, and the question presented is: Has a court of chancery jurisdiction to supply to another court a record of the latter in-place of one which has been destroyed by accident ? The jurisdiction of the court of chancery, arising from accident, is a very old head of equity, and perhaps coeval .with its existence. But every case of accident will not justify the interposition of a court of equity.

The jurisdiction will be maintained only—first, when a court of law cannot give suitable relief, and secondly, when the party has a conscientious title to relief. Both grounds must concur in the given case, for ■ otherwise a court of equity not only may but is bound to ■withhold its aid. 1 Story’s Eq. Jur., 79.

Is there then not merely some remedy, but is there adequate remedy at law % The Legislature, in cases like this, has provided' a method of supplying records which have been destroyed or lost; but in such cases, it the court of ■ chancery ever had jurisdiction, the legislative provision of a ■.remedy will not take away the jurisdiction of equity, unless by express prohibition, (Case vs. Fishlack, 10 B. Mon., 40,) for otherwise, a court of law might oust a jurisdiction rightfully attached in equity.

The jurisdiction of the court of chancery in the case of lost instruments, as bonds, deeds, &c., was founded upon the doctrine that there could be no remedy, because there could be no frof&rt of the instrument, without which a declaration would be fatally defective.

And there was another ground for the interfence of a court of equity, and that is, .that no other court could furnish the same remedy with the fit limitations which might be demanded for the purposes •of justice, by granting relief only upon the party’s giving a bond of indemnity; a court of law being incompetent to require such a bond as a part of its judgment. 1 Story’s Eq. Jur., 82.

On the latter ground also, courts of equity had jurisdiction of remedies upon negotiable instruments which were lost or destroyed, for a court of law required that the plaintiff suing upon negotiable paper should produce it at the trial, which he could not do if it were lost. Willard’s Eq. Jur., 52; Story’s Eq. Jur., § 85. In coming into equity upon a lost bond or covenant on negotiable instruments, the party must have some object beyond the mere decree of the existence and loss of the paper ; he must be entitled to some relief or protection from the court beyond the establishment’ of the instrument.

In the case of a lost bond or note, he may have a decree for its enforcement and satisfaction. If a deed concerning land is lost, and the party prays discovery and to be established in possession under it, equity will relieve, for there is no remedy at law; and where the plaintiff is out of possession, there are cases in which equity will interfere upon lost or suppressed title deeds, and decree possession to the plaintiff; but in all such cases there must be other equities calling for the action of the court. 1 Ves., 434-35; 3 Atk., 132; 1 Fonblanque’s Eq., B. 1, ch. 1, sec. 3; id., ch. 3., sec. 3.

These citations sufficiently indicate the grounds of equity jurisdiction in the cases of lost or destroyed papers, without farther illustration. The power of supplying a new record when the original has been lost or destroyed, is one which pertains to courts of record of general jurisdiction, independent of legislation. It is an inherent power in such courts, and has been acted upon in this State in Rhodes vs. Mosely, 6 Fla., 12, and in Pearce vs. Thackeray, decided at Jan’y Term, 1870. In Douglass vs.

Yallop, 2 Burrow, 722, a new judgment roll, for a judgment rendered thirty years previous to a motion to supply the loss, was ordered to be made. In Jackson vs. Smith, 1 Caines, 496, a new nisi jrrins record was allowed to be made up on motion and affidavit that the original had been lost or burnt, after six years. In White vs. Lovejoy, 3 Johns., 448, a fi. fa. on which a levy had been made was burnt, and the court ordered a new fi. fa. to be substituted. The power has been long and frequently exercised in Alabama. McLendon vs. Jones, 8 Ala., 298; Doswell vs. Stewart, 11 Ala., 629; Dozier vs.

Joyce, 8 Porter, 303; Williams vs. Powell, 9 Porter, 493 ; Wilkinson vs. Brandam, 5 Ala., 608 ; Lyon vs. Bolling, 14 Ala., 753; Bishop vs. Hampton, 19 Ala., 792; 3 Ph. on Ev., 1,066. Upon the destruction of any part of a record or of the process, pleadings, or orders in a suit, the loss may be supplied by making up others in their stead, provided the court be reasonably satisfied that the proposed substitute is of the same tenor. Upon that, the court where the suit is must exercise its own judgment. Harris, et al. vs McRae’s adm’r., 4 Iredell, 81.

The proceedings, in all the cases cited, were had in the absence of any statutory regulation, upon the acknowledged and necessary power of the court to control, amend, and supply its own records. The jurisdiction invoked by the complainant in the present case has not been exercised by any court of chancery in this country or in England, (so far as we have been able to discover with our limited means of examination,) and the principles upon which the court takes jurisdiction in the cases of lost instruments, come far short of embracing this case.

The inherent power of the courts to control their own records, and to supply losses therein, it seems is antagonistic to the power of any other court to interfere and make records for them. By this proceeding, one court of special jurisdiction is invoked to take cognizance of and to supply to another court of general,, jurisdiction a record, in lieu of one which has been destroyed.

This power, once admitted, will place the records of the court's of common law at the mercy of the court of chancery, and might lead to an absurd conflict between the law and equity side of the court over the records of the court of common law: one party imploring the conscience of the one to seize the power of the other and control the history of its past action, and perhaps to compel the court of law to adopt and acknowledge as a fact a thing of which it may deny any knowledge, and against which action the other party may justly ask it to revolt and treat as an usurpation, because its own power is ample and adequate.

There is nothing here requiring the exercise of the conscience of the court which may not be attained by a simple proceeding according to the course of the common law, and therefore chancery has no office to perform. The decree of the court overruling the demurrer must be reversed upon both grounds of demurrer.