543 S.W.2d 846 | Tenn. | 1976
OPINION
This is an appeal from a decree of the Probate Court of Shelby County dismissing the petition filed by Andrew Gillis, Jr., to have a final decree of adoption entered nunc pro tunc in the action filed by Cornelius Gillis and wife, Georgia Gillis.
At stake is the estate of Georgia Gillis (West), who died intestate. If the decree is entered nunc pro tunc, Andrew James Gil-lis, Jr., inherits as the adopted son of Mrs. Gillis (West). If not, the appellees inherit.
To set the stage for the filing of the petition under consideration, the record shows that Mr. and Mrs. Gillis sought to adopt their nephew, the appellant, by petition filed on December 12, 1925. . The proposed adoption was contested by the stepmother of appellant, with the result that on December 22, 1925, a “Decree Paroling Child to Petitioners, Cornelius Gillis and Georgia Gillis and Retaining Cause in Court for Further Action” was entered. The decree provided that the appellant was paroled to Cornelius and Georgia Gillis for three months, and granted them the right to apply to adopt the appellant after the expiration of the parole period.
Appellant averred in his petition for entry of a decree of adoption nunc pro tunc “that after the expiration of three months from the entry of [the decree of December 22, 1925, the Gillises] petitioned the Court for the adoption of the said Andrew James Gillis (Jr.), and after testimony had been introduced in open Court, the Court, having considered the entire record, granted the Petition of Cornelius and Georgia to adopt the said Andrew James Gillis (Jr.). A copy of Answer and Cross Bill of Cornelius Gillis and Georgia Gillis, his wife, setting forth these facts and filed in this cause [on July 11,1927] is attached hereto, marked Exhibit
It is this decree that appellant seeks to have entered nunc pro tunc.
Appellees moved to dismiss the petition on the grounds (1) that there is no authenticated record to support the entry of a nunc pro tunc decree of adoption; (2) that there is no legal basis for the entry of such a decree “Sans an Order, Decree, and Minutes of the Court, signed by the presiding Judge;” (3) the records of the court proceedings can be proven only by duly certified copies; and (4) the entry of a nunc pro tunc decree based on parol evidence is against public policy.
The trial judge sustained the motion, pointing out:
“The said purported Order is unnumbered, undated, unapproved by counsel, un-docketed and unsigned by the Court. There is no record to indicate that same was ever received by the Clerk of the Court or in what manner same was in the jacket containing the records in the cause. Such purported order is not a part of the official record.
“On July 6,1927, Judge Guthrie, the then presiding Judge of the Probate Court, directed in writing the Clerk of the Court, to set the case for hearing on July 12, 1927, and the record is silent as to what if anything occurred on said date in that there is no Order pertaining thereto.
“It also appeared unto the Court that throughout the proceedings, which were conducted in the cause, approximately fifty years past, that the records do not disclose that the Court signed or entered a written Decree of Adoption.
“A Court of Record can only speak through its minutes and the minutes in the cause do not reflect that a Decree of Adoption was ever entered or presented to the Court for entry.
“The Petition filed by Andrew James Gil-lis is not well taken and the Motion to Dismiss same should be granted.”
It is a truism that the trial court speaks through its minutes, but the truism does not preclude the entry of a judgment nunc pro tunc to make the minutes speak the truth. See Rush v. Rush, 97 Tenn. 279, 37 S.W. 13 (1896); McCown v. Quillin, 48 Tenn.App. 162, 344 S.W.2d 576 (1960); Hines v. Thompson, 25 Tenn.App. 86, 148 S.W.2d 376 (1940).
In Rush v. Rush, supra, this court affirmed the entry of a decree of divorce nunc pro tunc on the basis of a notation on the judge’s docket, where the decree was not entered or extended by the clerk on the minute or record book of the court. In doing so, the court stated:
“It is equally clear that a party whose rights are injuriously affected by a clerical omission to extend upon the record a judgment of the court regularly pronounced may present the matter to the court, and upon a proper showing have the judgment entered nunc pro tunc. All courts have the right, and it is their duty, to make their records speak the truth, and a court, therefore, in a proper case, of its own motion, may order a nunc pro tunc entry to be made; and no sound reason can be suggested why they should not exercise this right and discharge this duty upon the suggestion of one whose rights are impaired by the failure of the record to state the truth. And the lapse of time between the announcement of judgment and the making of this motion is of no importance. That which is important is that the proof be clear and convincing that the judgment which it is sought to have entered is the one pronounced in the cause.” (Emphasis supplied.)
In this case appellant averred that the trial judge heard evidence and granted the petition of Cornelius Gillis and Georgia Gillis to adopt appellant. He further averred that the failure to have the decree
The decree of the Probate Court dismissing appellant’s petition is reversed. The cause is remanded for further proceedings. Costs incident to the appeal are adjudged against the appellees. Costs in the trial court will await the outcome of the action.
