Childress v. Carley

46 So. 164 | Miss. | 1908

Lead Opinion

Mayes, J.,

delivered the opinion of the court.

There is no charge of fraud in the bill of complaint filed in this cause, nor is there any contention that the judgment entered on the minutes of the court was a different judgment from the one which the court ordered the clerk to place there. The real question in the case, and the only question, arises out of the fact that the judge finally adjourned his court on Saturday night, the. 15th day of June, 1907, after the rendition of the judgment in question, but before the judgment was actually put on the minutes by the clerk. The object of the bill filed is to show that the judgment was not actually entered at the time of its rendition, nor was it on the minutes of the court at the time tbe judge signed tbe minutes finally adjourning tbe court. It-is offered to be shown that the judge signed the minutes, leaving blank pages in front of his signature to be filled in with this judgment, and adjourned court before the actual entry of the judgment, which was subsequently placed on the minutes by the-clerk, on the following Monday, about 9 or 10 o’clock, above the signature of the judge made on Saturday. No irregularity is shown on the minutes of the court; but it is sought to make proof of this by the clerk, his deputy, and the sheriff. The minutes are in all respects regular, and, as far as anything is shown by them, the judgment was entered, as required by statute, before the final adjournment of the court. It is claimed that the entry of this judgment after the adjournment of the court is a nullity.

The question in this case is not different from the question involved in the case of Jones v. Williams, 62 Miss., 183. In the Jones case, decided under Code 1880, § 2282, of which-Code 1906, § 1007, is an almost identical copy, proof was offered to contradict the record of the court as to the day of adjournment, and the court said: “The settled doctrine seems to be that evidence to vary a date shown by the record is not permissible. Judicial records, required by law to be kept, are said to import unerring verity, and to be conclusive evidence-against all the world as to their existence, date, and legal consequences. The minutes of the proceedings of the circuit .court are required to be entered by the clerk, read in open court, and signed by the judge, and on the last day of the term the minutes shall be drawn up, read, and signed on the same day, or before-the adjournment of the court. These minutes are a record of the most solemn character, and entitled to the highest degree of verity ever attached to records.” In the case we are now considering it is sought to contradict the minutes of the court by proof that a judgment, shown by the minutes to have been rendered and entered as required by law on the records of the-court before final judgment, was' not in fact so entered, but in truth was not entered until two days after final adjournment of the court. The case of Jones v. Williams is decisive of this case; but we are not without other apt and strong authority. Any contrary holding would bring about immeasurable evil and result in the destruction of the stability of all judicial records.

In Wigmore on Evidence, p. 3457, § 2450, dealing with this very question, in speaking of judicial records, it is said: “The record being the sole embodiment of the judicial proceedings, no other materials or utterances, oral or written, can be set up in competition with it. In other words, but less correctly, the record is conclusive. This is so, even though the record has not been made up; for herein appears the compulsory nature of the rule. It must.be made up, and, if it is not, then in legal theory there is no judgment or legal proceedings; and it is always in the power of litigating parties to prevent hardship by ■compelling the proper officer to make up the record.” We quote the. above from Wigmore with approval. The law requires the record to be complete, and when it so purports to be on its face in law it is complete, and it is not subject to impeachment. It is within the power of litigating parties to compel the officer to perform his duty and make up the record in literal compliance with the statute; but, if the litigating parties do not do this, the law is not at fault. A party to be affected by the record, and desiring it to be complete before it is signed by the judge, by the exercise of ordinary care can see to it that it is correctly made up, and if he fails to do so he cannot after-wards complain. In the case of Wells v. Stevens, 2 Gray (Mass.) 115, in speaking of the right to impeach a judicial record, the court said: “The rejection of such evidence is an obvious and inevitable consequence of the incontrovertible verity which the law, for reasons lying at the foundation of all well-ordered jurisprudence, attaches to judicial records. Judges and magistrates are responsible to the government from which, they derive their authority, but not to individuals, for the negligent or willful violation óf official duty.”''

Because we decide this ease on other grounds, we are not to 'be understood as holding it competent, for an officer, charged with the duty under the law of keeping a record, to impeach that record by his own testimony.

Affirmed.

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Dissenting Opinion

Whitfield, O. J.,

delivered the following dissenting opinion. I do not think the case of Jones v. Williams, 62 Miss., 183, has any application to the case made by the facts in this record. The effort in that case was, conceding the minutes of the court to have been entered up by the clerk and read and signed by the judge during the term of the •court, to show by parol that the date on which the minutes recited the court adjourned was not, in fact, the trae date; in other words, the effort was, directly and squarely, to impeach the verity of the record as to the date, admitting that the record had been made up at the proper time — during the term. The -effort here is, not to impeach or contradict the record in any way whatever, but to show that no such record ever had existed; in other words, the effort here, precisely, is to show that what the clerk entered on the minutes of the court as a part of the record in vacation after the court had adjourned constituted no part of the record, the record having closed with the adjournment of the court, and that, consequently, what the- clerk inserted in the minutes of the court, after the court adjourned, in vacation, was mere waste paper — constituted no part of the record — and that no such record, as a consequence, had any existence. In the Jones case the effort was, granting the record to be the record, to contradict the recitation of the record by parol. In this case the effort is to show that there never was any such record, because of the absolute want of power on the part of the circuit clerk to enter anything on the minutes of the court after the court had adjourned and in vacation. The distinction between the two cases to my mind is clear and palpable. I think it is perfectly competent to show by parol the utter want of power in the circuit clerk to enter, as a part of the minutes of the circuit court, something that he claims was a part of the mimites, but which he did not enter on said minutes until" after the court had adjourned, in vacation. The clerk has no-power to enter anything as part of the minutes of the circuit-court after that court has finally adjourned. He had no more power in this case to enter what was entered here in vacation than any other citizen in the county had. His act in so entering it in vacation was absolutely without power, and what he-entered, of course, no part, in the eye of the law, of the minutes of the court. It is very much like the principle in respect to-the alteration or contradiction of a written contract by parol in those cases in which the effort is, not to contradict the terms-of the contract in any way, but to show, either that one of the parties had no capacity to make the contract, or that for some-reason the contract was illegal, and hence that there never was any such contract in existence, in the eye of the law.

The precise distinction upon which I insist is stated by Prof. Wigmore in volume 4, p. 3457, § 2450, note 2, at the conclusion of that note, citing tiñe case of People v. Gray, 25 Wend. (N. Y.), 465, as holding that “the original minutes of a trial during session, not made up as required by statute, are not thereeord.” In that case, thus referred to, the court said, at page-468, speaking of the original minutes of a conviction: “By section 5 it is made the duty of the clerk, in any court in which judgment upon conviction has been rendered, to enter it fully upon the minutes, stating briefly the offense for which such-conviction was had, and the court is to inspect such entries and conform them to the facts. The sixth section makes it the duty of the district attorney to prepare for the clerk the statement of the offense, as the same is charged in the indictment, to be entered in the minutes; but the court is to inspect it and see that it conforms to the indictment.” And in the concluding portion of the opinion the court expressly held that minutes not made out in exact conformity to these statutory requirements constituted no record. That is exactly the proposition for which I here contend. Our statute, as pointed out in the brief of counsel for appellant, requires tbe minutes to be drawn up, read, and signed by tbe judge of tbe circuit court before adjournment. It is not pretended tbat tbis part of-tbe pretended minutes was read by tbe judge after entry, or signed by bim, on tbe last day of tbe term of tbe court. He signed nothing but a blank sheet of paper, leaving tbe clerk to fill in tbe space, of course intending tbat tbe clerk should fill it in before tbe court was adjourned; but tbe circuit clerk did not do tbis. Tbe court was adjourned, leaving tbe last page of tbe minutes absolutely blank, and several days afterwards, during tbe next week, tbe clerk, in vacation, undertook to enter, and did enter, these pretended minutes over tbe signature of tbe judge, in tbe blank space. How can it be possible to bold, soundly, in view of the plain legal propositions tbat tbe clerk bad no power whatever, after tbe adjournment of tbe court, to enter anything as minutes, and tbat tbe ending of tbe term of tbe court ended any power to enter tbe minutes, tbat parol proof cannot be beard to show that tbe said clerk entered these alleged minutes in vacation, when be bad no power to enter them, and tbat hence they constituted no record, and, being no part of tbe record, tbe parol proof was competent to show tbat fact ? To my mind tbe opposite ruling involves consequences tbat are extremely dangerous. What limit is there to entries tbat may be made by a circuit clerk in vacation, if only tbe circuit judge should sign in blank tbe minutes to be entered over bis signature ?

I do not care to enlarge. I merely emphasize, what I think is the manifest distinction, tbat in tbe cases relied upon by tbe court tbe effort was to contradict tbe recitation of fact in a record which was conceded to be a record on all bands; whereas, here tbe effort plainly is to do nothing of tbat kind, but merely and simply to show by parol tbat what is called tbe record never bad any existence as a record, since it was entered by tbe circuit clerk in vacation after tbe court adjourned, when manifestly be bad no power to make any sucE entry. See, also, carefully, tbe authorities cited in note 12, p. .3459, vol. 4, of Wigmore on Evidence, in respect to what constitutes tbe record.