Hammond-Gregg Co. v. Bradley

80 So. 489 | Miss. | 1918

Smith, O. J.,

delivered tbe opinion of the court.

This is an appeal to settle the principles of tbe case from a. decree overruling a demurrer to a bill.

Tbe bill alleges, in substance, that at the January term, 1916, of the circuit court of Clay county there was tried an action of assumpsit wherein the appellant was tbe plaintiff, and tbe appellee was tbe defendant, in which at tbe close of the evidence the court granted tbe plaintiff a peremptory instruction; tbe bill does not allege that no verdict was rendered by tbe jury, but does allege that no judgment was rendered by the court; that thirty days after tbe adjournment of tbe court for tbe term tbe clerk thereof entered upon tbe minutes of tbe court a judgment for tbe plaintiff for tbe amount sued for, reciting therein that '“this order is entered by agreement of counsel for plaintiff and defendant, tbe same having been omitted;” that no such agreement bad been entered into between counsel for tbe plaintiff and defendant, and the clerk was without authority to enter any such judgment; that an execution has been issued on tbe judgment and is about to be levied upon tbe appellee’s propérty’; and prays that tbe levy of tbe execution be enjoined and: “That said order and judgment be held by this court to be null and void and of no effect and tbe same to be ordered to be expunged and stricken from tbe record.”

Among tbe appellant’s contentions are: First, a judgment is valid as between the parties thereto whether entered on the minutes of the court rendering it or not; and, second, the entry of a judgment on’ the minutes of the court is a mere ministerial act which can be performed by the clerk of the court at any time. A sufficient answer to both of these contentions is that it appears from the bill of complaint that no such judgment as the one here in question was in fact rendered, and an additional answer to the second is that section 1007, Code of 1906, section 727, Hemingway’s Code, provides that the minutes of the court ‘ ‘ shall be drawn up, read, and signed before the adjournment thereof.”

Appellant’s third contention in effect is that the minutes of the court import absolute verity and cannot be contradicted by parol. This is a correct announcement of the law, but what appellee is attempting to.do here is, not to contradict the true minutes of the court, but to show that the minutes as they now appear are not the true minutes actually drawn up, and for such a purpose parol evidence is admissible. Sackett v. Rose, 55 Okl. 398, 154 Pac. 1177, L. R. A. 1916D, 820; Birdsong v. Dodds, 2 Miss. Dec. 423; In re Havird, 2 Idaho (Hasb.) 687, 24 Pac. 542; 10 Enc. of Ev. 968.

“A record is conclusive evidence, but what is, or is not, a record, is a matter . of evidence, and may be proved like other facts.” Brier v. Woodbury, 1 Pick. (Mass.) 363.

And as was said by the court in Mitchell v. Kintzer, 5 Pa. 216, 47 Am. Dec. 408: “A forged record might be all fair, and smooth, and comely on its face, yet the sanctity 'due to an honest record would not protect it from exposure by proving the truth.”

The case of Childress v. Carley, 92 Miss. 571, 46 So. 164, 131 Am. St. Rep. 546, is not ir conflicl herewith • for the effort in that case was to show, not that the minutes of the court there in question were not the true minutes actually drawn up, hut that they were not drawn up in the manner provided by the statute.

Any rule which, would shut out the appellee from showing that the judgment here in question is no part of the true minutes of the court by which it purports to have been rendered would leave life, liberty, and property at the mercy of any unscrupulous person having access to court records. ■ \

There is no merit in any of the appellant’s other contentions.

When the cause comes on for final hearing in the court below, if thé allegations of the bill are found to be time, the court should make the temporary injunction perpetual, but should not order the judgment expunged from the minutes of the circuit court;' that being' a matter to be dealt with in that court alone.

Affirmed and remanded, with leave to appellant to answer withing thirty days after filing of the mandate in the court below.

Affirmed and remanded.