Barringer v. Booker

1 Indian Terr. 432 | Ct. App. Ind. Terr. | 1896

Lewis J.

The bill of exceptions, duly reserved, and filed within proper time, presents for consideration the ques tions whether the court erred in amending the original judg ment after the expiration of the term at which it was render ed, by a nunc pro tunc entry without motion and notice to the adverse party, and whether it erred in refusing to per mit the admission of evidence to show that the Judge who tried the case had set aside the original judgment, and had failed and neglected to have the order granting a new trial entered of record. At the time of the amendment of the original judgment chapter eighty-eight of Mansfields Digest of the Laws of Arkansas was in force the Indian Territory, Section 8909 of this chapter provides: “The court in whicl a judgment or final order has been rendered or made, shal have power after the expiration of the term, to vacate oi modify said judgment or order * * * Third. For mis prisions of the clerk.” §3910 of this act provides; “Pro ceedings to correct misprisions of the clerk shall be bj motion upon reasonable notice to the adverse party or hi: attorney in the action.” The decisions of the Supreme Court of Arkansas are not entirely free from conflict in thi construction of the provisions of the statute quoted. Ai amendment of a judgment entry such as was made in thi: case is clearly the correction of a clerical misprision, and'we think under these statutes, that correct practice required notice to the adverse party or his attorney of the motion to make such correction. This is the view taken- by the Supreme Court of Kentucky of like statutory provisions. Seiler vs Bank, (Ky) 5 S. W. 536. Our power to reverse this judgment is defined entirely by special statutes of Arkansas. § 5083 thereof declares; “The court must in every stage of an action disregard every error in the proceedings which does not effect the substantial rights of the adverse party; and no judgment shall be reversed or effected by reason of such error or defect. ” We regard this statute as most wise and just, and we are disposed to construe it, not narrowly, but broadly. Under § 3909, above quoted, the power is conferred to correct a judgment after the expiration of the term. Motion and notice to the adverse party are the prescribed procedure to that end in the case of clerical misprision. The failure to give such notice is a defect in the proceedings for which the judgment cannot be reversed or effected. Unless the substantial rights of the party be affected by such defect. In ¡his case, the original judgment, in terms, affirmed the judg-nent of the Commissioners Court, which was a part of the record necessary to give the trial court jurisdiction. To iorrect the original, then, — not in any wise to alter or vary ts terms, but to make it technically formal and complete,— ■equired no extraneous proof-, but simply an inspection of the luthenticated record upon which the jurisdiction of the trial iourt rested. The lack of notice complained of could not, by ,he remotest possibility, have affected the rights of the ap-)ellant injuriously. The action of the trial court therefore, n this particular, though, in our judgment, not .free from srror, does not involve reversible error.

Adverse party should have notice of motion to amend judgment. Cause will not be reversed, unless substantial rights are affected.

Upon the second point presented, we deem it neces-ary to say only that the record disclosed that, at the term at rhich the case was tried and the original judgment entered, a motion for a new trial was filed, overruled, and exceptions allowed, and defendant given 60 days to file bill of exceptions. We do not think that this solemn declaration of the record could be overcome by oral testimony tending to show that the trial judge in chambers, and not in open court, had set aside and vacated the original judgment, and had failed and neglected to have the order entered of record, there appearing no record nor memorandum of such order.

Recitals of blc°ófttraaFct-testimony.

Other questions presented will not be considered, for the reason that the bill of exceptions in which they are reserved was not filed within apt time. The judgment will be affirmed.

Springer, C. J., concurs.