Frink v. Frink

Jun 15, 1862
Reporters:
Before:
Bell
Bell, C. J.

It is part of the ordinary duty of the clerk to extend the records of the court from the process and pleadings on file, and from the minutes and entries on the dockets. Willard v. Harvey, 24 N. H. 349. He has the right to regard the entries made, and the process issued by his predecessors, as correct; Fay v. Wenzell, 8 Cush. 317; and if, from their inaccuracy, errors are found in the record as extended, the fault is not his. He has no power, and it is no part of his duty to inquire elsewhere, and he has no right to cite others before him, or to decide upon extrinsic evidence. In this case the clerk found upon the docket the entry of a general verdict for the plaintiff. He was right in regarding it as a general verdict for the whole of the demanded premises. The proper entry of the verdict, if it was returned for a part only, was, Verdict for the plaintiff for half the demanded premises, and for the residue for the defendant. The attempt to cast censure upon the clerk, who made the record, is groundless. It was the duty of the counsel to his client to see that there was a verdict signed, and that it was for no more than was ordered.

Every court exercising a continuing jurisdiction — having an office for the preservation of its records, and the charge of those records by a proper officer — has, by law, an implied authority to amend its records, to make them conform to the facts and truth of the case; Remick v. Butterfield, 31 N. H. 85; Dudley v. Butler, 10 N. H. 284; 24 N. H. 344; Clagget v. Simes, 21 N. H. 43; or, as the same doctrine is well expressed by Fletcher, J., in Balch v. Shaw, 7 Cush. 284, there can be no doubt that it is competent for a court of record, under its general inherent and necessary authority, to correct the mistakes and supply the defects of its clerk or recording officer, so as to have the record conform to the actual facts and truth of the case. And this may be done at any time, as well after as during the term. The length of time, in this case (12 years), between the granting of the license and the making up of the record, does not take away the right or jurisdiction of the court. S. P., Fay v. Wenzell, 8 Cush. 317; Limerick Petr., 19 Me. 186; Lathrop v. Paige, 26 Me. 121; Woodcock v. Parker, 35 Me. 138; Lewis v. Ray, 37 Me. 234; West v. Weed, 25 Conn. 337; Chichester v. Candie, 3 Cow. 39; Hunt v. Grant, 20 Wend. 90.

This authority not only extends to the correction of clerical errors, but to the restoration of papers which have been improperly altered or defaced, and tire substitution of new ones where the originals are purloined, or lost. Douglas v. Yallop, 2 Burr. 722; Holliston v. Judges, 8 Ohio (N. S.) 201.

It is contended, and so are some of the authorities, that an amendment of a record can not be made unless there is something to amend by, by which is understood, something upon the files or records of the court. Wendell v. Mugridge, 19 N. H. 112; Atkins v. Sawyer, 1 Pick. 354; Cro. Jac. 628, 632. But in other cases such *515amendments have been made according to the minutes of the judge. Coughran v. Gutcheous, 18 Ill. 390; Brady v. Little, 21 Geo. 132; Petrie v. Hannay, 3 D. &. E. 659; 1 Tidd. Prac. 661; Newcomb v. Green, 1 Wils. 33; 2 Stra. 1197, S. C.; Eddowes v. Hopkins, 1 Doug. 376; Tarlton v. Fisher, 2 Doug. 672. Here we have the minutes of the judge and counsel entirely clear upon the point.

But we think it clear, upon the authorities, that the court may make such amendments upon any competent legal evidence, and that they are the proper judges as to the amount and kind of evidence requisite in each case to satisfy them what was the real order of the court, or the actual proceeding before it; what was the proper entry to be made on the docket, and how the record should be extended. 8 Cush. 317; 7 Cush. 284; 19 Me. 186; 25 Conn. 337; 8 Ohio (N. S.) 201; before cited.

Where there is nothing more to rely on than mere memory, the court will act, if at all, with great' caution. Porter v. Vaughan, 22 Vt. 273; Coughran v. Gutcheous, 18 Ill. 390.

The position that the title has passed into the hands of a bond fide purchaser without notice, signally fails. A letter, written by the purchaser only a little more than half a year before his purchase, shows that he then well knew that his sister’s title extended to one half the premises only. There is nothing but the singular forgetfulness of right displayed by the claim, which gives any color to the pretense that the facts could be forgotten.

The amendment is allowed.