90 S.W.2d 236 | Ark. | 1936
The appellant, B. G. Dickey, was the curator of the estate of Charlie Lewis Townes, a nonresident minor, and, as such, leased the lands of his ward for a period of five years to Renfroe Turner, which lease was approved by Judge Oliver, the then county judge of Crittenden County. The annual rental was fixed at the sum of $3,000. Dickey executed a written waiver of the rents for 1932 in order for the lessee to secure advances to enable him to make a crop. In his 1933 annual report, Dickey claimed credit for the rents of 1932 on the ground that the crop made for that year was consumed in the payment of the money and supplies used to make the crop, and that he collected no rent. C. M. Clark, the curator in succession, filed exceptions to the report, which were sustained by the probate court, but on appeal to the circuit court Dickey's claim was allowed. From the decision of the circuit court, Clark prosecuted an appeal to this court which reversed the judgment of the circuit court and remanded the cause for a new trial. Clark v. Dickey,
On or about the day when this case was to be heard by the circuit court on remand, a petition was filed in the county court for an order nunc pro tunc for the purpose of making the record show those matters which we held had not been done. The probate court denied the petition, and from its order an appeal was taken to the circuit court where, by agreement, the appeal was consolidated with the main case. *70
The purpose of a nunc pro tunc order is to make the record reflect the transaction which actually occurred, and which is not reflected by the record because of inadvertence or mistake. Its province cannot be extended to make the record show what ought to have been done. In nunc pro tunc proceedings the record may be corrected or made to speak the truth upon parol testimony alone, but the evidence thus established should be decisive and unequivocal. Midyett v. Kerby,
On the hearing, the evidence considered by this court in Clark v. Dickey, supra, was introduced as was also the testimony of Mr. Dickey, Judge Oliver, the clerk of the probate court, and other witnesses. The trial court concluded that this evidence was not sufficient to satisfy the rule above announced, and in effect held that Dickey had failed to show a compliance with 1 of act 92 of the Acts of 1931. It would serve no useful purpose to review the evidence adduced at the former trial or that introduced on remand, as in our opinion it supports the conclusion reached by the trial court.
Affirmed.