116 P. 100 | Or. | 1911
delivered the opinion of the court.
We cannot, upon a motion to dismiss the appeal, try out the merits of the controversy, or look into the showing made, to determine whether the court below abused its discretion or lacked authority to make the order.
The motion is denied. Denied.
delivered the opinion of the court.
No appeal was taken from the order of March 10, 1911, and it is needless for us to determine whether or not the same was regular. The question is: Was the order of that date beyond the power of the court, and void? If it is void, it should be vacated and expunged from the record.
“When a judgment has been rendered or order made, and the clerk has failed or neglected to enter it of record, the court has the power to thereafter order the judgment or order so rendered or made to be entered nunc pro tunc.”
Our statute provides for the entry of a judgment at any time during the term, or on motion of the party entitled, at any subsequent term. Section 204, L. O. L.
As to the contention of counsel for defendants that an order for an entry to be made nunc pro tunc cannot be passed unless the record or some quasi record or memorandum affirmatively shows such an order to have been passed at a prior date, it should be noted that the stipulation made by counsel, providing for an extension of time to file the transcript, was on file in the lower court. This would no doubt aid the memory of the court as to the
“Our first impression was that whatever might be the powers of the courts in this regard over their records during the term in which the transactions are supposed to have occurred, the record of which, or failure to make any record of which, is the subject of amendment, yet when it was attempted to do this after an adjournment and at a subsequent term of the court, the powers of the court in making such changes in the records of the proceedings were limited to those in which there remained written memoranda of some kind in the case, and among the files of the court, by which the record could be amended, if erroneous, or the proper entry could be supplied, if one had been omitted. * * We are satisfied, however, upon an examination of the authorities, that this restriction upon the power of the court does not exist.”
The court cites many authorities, among them the case of Bilansky v State of Minnesota, 3 Minn. 427 (Gil. 313), in which the opinion of the court contains a somewhat full reference to the history of this subject as found in the English reports, and in Blackstone’s Commentaries, Vol. III, p. 407, which shows that at an early day the
“While we would go as far as any court in reprobating a rule which would place the proceedings of a court almost entirely at the mercy of the subordinate officials thereof, we would be scrupulously careful in adopting any rule which would tend to destroy the sanctity or lessen the verity of records. And while we admit the power to amend a record after the term has passed in which the record was made up, we would deprecate the exercise of the power in any case where there was the least room fox-doubt about the facts upon which the amendment was sought to be made. * * But when the facts stand undisputed,' and the objection is based upon the technical point alone that the term has passed at which the record was made up, it would be doing violence to the spirit which pervades the administration of justice in the present age to sustain it. It is our opinion that this power of necessity exists in the district court, and that its exercise must in a great measure be governed by the facts of each case.”
See, also, Frink v. Frink, 43 N. H. 508 (80 Am. Dec. 189: 82 Am. Dec. 172) ; Rugg v. Parker, 7 Gray (Mass.) 172; Jacks v. Adamson, 56 Ohio St. 397 (47 N. E. 48: 60 Am. St. Rep. 749).
There are many cases which hold that an entry nunc pro tunc may be ordered on any evidence that is sufficient and satisfactory, whether it be parol or otherwise. 1 Black,
“On general principles, it is competent for a court of record, and incident to its authority, to correct mistakes in its records, which do not arise from the judicial action of the court, but from the mistakes of its recording officer. In doing this, it may regulate its own action upon its own sense of responsibility and duty, and proceed upon suggestion, or on motion of those interested, or upon its own 'certain knowledge and mere motion.’ It would not be an adversary proceeding, in which, of necessity, there should be parties, or in which notice would be required” — citing Balch v. Shaw, 7 Cush. (Mass.) 282.
The case of Nicklin v. Robertson, 28 Or. 278 (42 Pac. 993: 52 Am. St. Rep. 780), cited and relied upon by counsel for defendants, was a case where application was made to the court, after the expiration of one year from the entry of the judgment, to amend the judgment and materially change the same in the amount of $508.60, and differs from the case at bar.
“While orders made nunc pro tunc, correcting or amending the record, will very seldom be disturbed by an appellate court, and never, except for an abuse of discretion or absolute want of authority to make them, they are appealable. * *”
See, also, Grover v. Hawthorne, 114 Pac. 472.
The order of April 3, 1911, is therefore affirmed.
Affirmed : Rehearing Denied.