| Ill. App. Ct. | Feb 21, 1902
delivered the opinion of the court.
Parties may be guilty of contempt by unseemly conduct in the presence of court during a session thereof, or they may at any time or place contemptuously disobey orders of court. To the existence of the last mentioned contempt it is manifest there must be in existence an order of court in respect to some matter over which the court, in making the order, had jurisdiction.
Courts of record speak only by their records; that is to say, for evidence of what a court of record has done, resort must be had to its record. Knowledge of the order of court alleged to have been violated must be shown; for this purpose, presence in court and hearing of the order when given is sufficient. But as before stated, order of court there must have been at the time when the violation is said to have taken place. '
In criminal proceedings, and those involving rules for contempt, nunc pro tunc orders can not operate to modify orders theretofore made, or to take the place of orders intended to be made, but which were not made. Courts can, by nunc pro tunc orders, supply omissions in the record of what was actually done in the cause at a former time, and by mistake or neglect of the clerk was not entered in the clerk’s minutes or the court’s records; but where the court has failed to make an order which it could have made and in fact intended to make, it can not subsequently make the same nunc pro tunc so as to make it binding upon the parties to the suit from the date when it was intended to have been so entered. Ex parte Buskirk, 72 Fed. Rep. 14-20-21; Smith v. Hood & Co., 25 Penn. St. 218; McCormick v. Wheeler, 36 Ill. 114" date_filed="1864-04-15" court="Ill." case_name="McCormick v. Wheeler, Mellick & Co.">36 Ill. 114; Perkins v. Hayward, 132 Ind. 95" date_filed="1892-06-16" court="Ind." case_name="Perkins v. Hayward">132 Ind. 95; Cleveland Leader Printing Co. v. Green, 52 Ohio St. 487; Gillett v. Union Nat. Bank, 56 Mo. 304" date_filed="1874-03-15" court="Mo." case_name="Jillett v. Union National Bank">56 Mo. 304; Cox v. Gress, 51 Ark. 224" date_filed="1888-11-15" court="Ark." case_name="Cox v. Gress">51 Ark. 224.
A court can not amend its record to correct judicial error, or remedy the effect of judicial non-action. Encyclopedia of Pleadings & Practice, Vol. 17, 912; Forquer v. Forquer, 19 Ill. 68" date_filed="1857-11-15" court="Ill." case_name="Forquer v. Forquer">19 Ill. 68.
All amendments of judicial action, whether made in or after term, from minutes or memoranda of clerk or court, or from the recollection of the judge, are made with a saving exception, expressed or implied, in favor of the rights of third parties acquired in reliance upon the record made bv the clerk, which record imparts absolute verity. McCormick v. Wheeler, 36 Ill. 115; Gray v. Robinson, 90 Ind. 27; Church et al. v. English, 81 Ill. 442" date_filed="1876-01-15" court="Ill." case_name="Church v. English">81 Ill. 442.
As said by the Supreme Court in McCormick v. Wheeler, 36 Ill. 115, “No doctrine rests upon more stable ground.”
The record that imparts absolute verity, and upon which all who look may rely, does not reside “ un written and unspoken in the breast of the judge.” Hor does it exist in memoranda kept by the court.
In the present case during the April term of court there did not, nor until the 18th day of May, did there exist, either record of court, memoranda of the judge, or minutes -of the clerk that any order had been made April 28th.
Upon the day last named, upon the recollection of the court, for the first time there appeared on record, memoranda or minute, the order for disobedience of which twenty days before (April 28th) appellant was held guilty of contempt.
From the fact that the clerk made no minute of an order on May 2d, it is fairly inferable that he heard none.
It is now, by the record of the proceedings had May 18th, established that the court did, April 28th, order that counsel for the defendants in the case of Bogue v. Phipps, Jr., in the Superior Court, “ take no action in the case of Franks v. Bogue in the Circuit Court until the court could hear a motion for an injunction in the case of Bogue v. Phipps, Jr.,” but it is not established that appellant was present when such order was made, or heard it; although it does appear that appellant was, after the adjournment of the Superior Court, told that Judge Chetlain had said to Mr. Stern, who represented appellant before the Superior Court, “ Tell Mr. Gardner I don’t want him to take any action in the other case until this motion is heard; ” and that the opposing counsel in the case before Judge Chetlain, said to appellant after the adjournment of the Superior Court, “ I presume your clerk has already told you that Judge Chetlain has ordered you to take no action in the Pranks case until he can hear my motion for an injunction.”
The order entered May 18th, is not nuno <pro tuno. The court did not then, as of April 28th, enjoin counsel; the language of the injunction is, “ It is ordered that counsel for the defendants be enjoined from,” etc. There was and is no order,nunc pro tuno or otherwise, made April 28th.
In this respect it is quite similar to the order considered in Bank of Hamilton v. Dudley, 2 Peters (U. S.), 492. Appellant could not, and did not April 28th, disobey an order not only first placed of record, but actually made May 18th. The recitation as to what the court said April 28th, is not an order.
The order of court made June 2d, finding appellant guilty of contempt and imposing a fine, is reversed.