And the Common Law in State Constitutions and State Statutes
Black’s Law Dictionary, 4th Ed., 425, 426
COMMON LAW ACTIONS are such as will lie, on the particular facts, at common law, without the aid of a statute. – Black’s Law Dictionary 5th Edition
COURT OF RECORD
A “court of record” is a judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of common law, its acts and proceedings being enrolled for a perpetual memorial. Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Metc. Mass., 171, per Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 689.
CLASSIFICATION
Courts may be classified and divided according to several methods, the following being the more usual:
COURTS OF RECORD and COURTS NOT OF RECORD. The former being those whose acts and judicial proceedings are enrolled, or recorded, for a perpetual memory and testimony, and which have power to fine or imprison for contempt. The error lies in their judgments, and they generally possess a seal.
Courts not of record are those of inferior dignity, which have no power to fine or imprison, and in which the proceedings are not enrolled or recorded. 3 Bl. Comm. 24; 3 Steph. Comm. 383; The Thomas Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal 225; Erwin v. U.S., D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96 Ohio St. 205, 117 N.E. 229, 231.
“Inferior courts” are those whose jurisdiction is limited and special and whose proceedings are not according to the course of the common law.” Ex Parte Kearny, 55 Cal. 212; Smith v. Andrews, 6 Cal. 652
“The only inherent difference ordinarily recognized between superior and inferior courts is that there is a presumption in favor of the validity of the judgments of the former, none in favor of those of the latter, and that a superior court may be shown not to have had power to render a particular judgment by reference to its record. Ex parte Kearny, 55 Cal. 212. Note, however, that in California ‘superior court’ is the name of a particular court. But when a court acts by virtue of a special statute conferring jurisdiction in a certain class of cases, it is a court of inferior or limited jurisdiction for the time being, no matter what its ordinary status may be. Heydenfeldt v. Superior Court, 117 Cal. 348, 49 Pac. 210; Cohen v. Barrett, 5 Cal. 195” 7 Cal. Jur. 579
“The judgment of a court of record whose jurisdiction is final is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact, by deciding it.” Ex parte Watkins, 3 Pet., at 202-203. [cited by SCHNECKLOTH v. BUSTAMONTE, 412 U.S. 218, 255 (1973)]
CONCLUSION
Courts of Record must proceed according to the course of the common law, without the aid of a statute. Courts which proceed according to statutory jurisdiction are inferior courts and may be sued directly, without appealing. Courts designated as courts of record may act as statutory courts unless the parties to a case object. The “judge” has no discretion in a court of record, and can only do ministerial functions, such as signing your orders.
No judgment of a court of record can be appealed. There is no higher court.
The type of relief demanded by the plaintiff determines if the court will operate as a court of record or not, on a case by case basis. There is no such thing as a “common law court.” All courts of record can hear actions at (common) law.
All federal courts are courts of record. This includes United States Tax Court.
US. Code, TITLE 28 > PART I > CHAPTER 5 > § 132. Creation and composition of district courts
(a) There shall be in each judicial district a district court which shall be a court of record known as the United States District Court for the district.
U.S. Code, TITLE 26 > Subtitle F > CHAPTER 76 > Subchapter C > PART I > § 7441 Status.
There is hereby established, under Article I of the Constitution of the United States, a court of record to be known as the United States Tax Court. The members of the Tax Court shall be the chief judge and the judges of the Tax Court.
Almost all state courts are courts of record.
For Michigan
Michigan Constitution Article 6, Section 15
Courts of record.
Sec. 15. The supreme court, the circuit and probate courts of each county, shall be courts of record, and shall each have a common seal.
REVISED JUDICATURE ACT OF 1961 (EXCERPT) Act 236 of 1961 (Legislative Session)
600.1416 Courts of record; seals.
Sec. 1416.
(1) The following courts are courts of record and possess seals: (a) the supreme court, (b) the several circuit courts, (c) the several probate courts, (d) the recorder’s court of Detroit, (e) the court of claims, and (f) any other courts the legislature designates as courts of record. (2) Whenever the seal of any court becomes unusable the court shall have that seal destroyed. (3) Whenever the seal of any court is lost or destroyed that court shall have a duplicate made which then shall become the seal of that court. (4) The expense of a new seal for a court shall be paid from the state treasury.
History: 1961, Act 236, Eff. Jan. 1, 1963 ;– Am. 1974, Act 297, Eff. Apr. 1, 1975