84 Ark. 100 | Ark. | 1907
Lead Opinion
(after stating the facts). The testimony shows conclusively that the dates of the decree of the .chancery court in controversy here had been changed. The uncontroverted evidence also is that the original entry of the date was in ink, and that this entry was erased, and a pencil entry made. The original record, showing the change in the date of the entry and in what the change consisted, is not before the court, but witness Floyd testified, and there is no contradiction of his evidence, that “January has been changed to February,” that “you can distinctly trace the capital ‘J’ and also trace the figure ‘3-’ ”
In other words, the undisputed evidence shows that the date of the decree was first written in ink “January 3,” something, and that this was erased, and the’ date as it now appears in the record “February 27, 1905,” was entered in pencil. The question here is did the original entry of the date in January, 1905, represent the true date of the decree, or was the true date as' represented by the pencil entry of February 27, 1905. The clerk who entered the decree testified in a general way that “the records speak the truth, and all he ever wrote speaks the truth;” and he also testified that he ordinarily wrote the dates in pencil, and whenever he changed the date it was by rhe order of the court, and that he never changed a record unless it was by order of the court after finding that it was not the proper date. But he also testified specifically that “the ink entry” of the date of this decree “had been erased, and a pencil entry made,” and that he presumed the change was made at the time of the transaction, but that he did not know when the change was made. This evidence, while it shows that there was an erasure in the date of the decree as first written and that the date as it now appears was written instead in pencil, does not show when the pencil date was written, and when the erasure and change took place, and whether it was on the date of the entry of the decree or not.
On the contrary, the testimony of the witness Floyd is direct and positive, after refreshing his memory from 'memoranda made by him based upon the date of the decree, that the true date of the decree was January 30, 1905, instead of the date as now written, February 27, 1905. And'the testimony of Floyd is so corroborated, clear and satisfactory and supported by other evidence in the record as to convince us beyond reasonable doubt that the date of the chancery decree in controversy was January 30, 1905, instead of February 27, 1905, as now written.
The record shows the first opening order of the court was January 24, 1905. If court -was adjourned on that day till January 30, 1905, and the decree was rendered on the latter date, and court, adjourned on that date till February 6, 1905, as is contended by appellant, then the record entries will be consistent with the testimony of the clerk as to the length of time the case was taken under advisement, and also with his testimony showing that the report of the receiver and petition to make distribution was filed and allowed February 6, 1905.
The testimony of the clerk tends to show that the case was taken under advisement two or three days, “some days.” But, if the case was submitted January 24, 1905, and taken under advisement till February 27, 1905, more than a month intervened. Again, if the court adjourned from January 24, 1905, till February 27, 1905, then it could not have made an allowance of a petition for distribution, as the clerk shows was done, on February 6, 1905. Again, if the true date of the decree had been February 27, 1905, instead of January 30, 1905, it is most improbable and unreasonable that the clerk would have first written January, instead of February, and that he would have first written 30, instead of 27, as the proof shows conclusively was done. It frequently happens that one in writing from habit continues to write the last month or year for a few days the succeeding j^ear or month, but it would be most unusual and unnatural for one to enter a date of a month before the month arrives. It is unreasonable to suppose, or to find that if the decree was rendered the 25th of February, 1905, that the clerk should have first written it the 30th of January, 1905, and that he should hav.e made the mistake three times. We are aware that proof to change and correct a record should be clear, decisive and unequivocal to the effect that the written memorial does not reflect the facts. Foster v. Beidler, 79 Ark. 418; Davenport v. Hudspeth, 81 Ark. 166; Goerke v. Rodgers, 75 Ark. 72; McGuigan v. Gaines, 71 Ark. 614.
We so regard the proof here. It matters not if the change, was made, as the clerk says, by the order of the court. Parties litigant have the right to see that the record of the proceedings in their causes should reflect the facts, “speak the truth.” The chancellor was in error in supposing that he could order a change of the date in the opening order of court without reference to whether the date fixed by him was the correct one or not. The dates of the opening and adjourning orders of count often become most important in determining the rights of parties, and the court can not change these or any other matters occurring in due course of legal proceedings, contrary to the facts. And no change should be made in the record, after long lapse of time, even to make it speak the truth, without notice to the parties in interest and opportunity to be heard.
The decree of the court refusing to grant appellant’s motion to have the record of the chancery court corrected in the particulars named therein is reversed, and the cause is remanded with directions to grant the relief sought. Treating the record corrected as herein directed, it results that the appeal in cause numbered 6247 was not taken in time, and same is therefore dismissed.
Rehearing
On Rehearing.
No. 6,616 is docketed as a separate case, but it is really a part of No. 6,247, being an appeal from an order of the chancery court overruling a motion to correct the record in a case that had been appealed from that court and was numbered in this court as No. 6,247. The opinions formerly delivered show the nature of the proceedings. When the case No. 6,616 was decided, there was no brief filed on behalf of the appellee, and our attention was not directed to a defect in the record which was unobserved by us. On motion for reconsideration, counsel for appellee makes an affidavit setting forth the reasons why no brief was filed when the case No. 6,616 was originally considered. These reasons are satisfactory to the majority of the judges, and we take up and consider now, on motion for rehearing, the questions presented for the first time for appellee the same as we would have done had the matter been called to our attention in the first instance.
The decree and final order of the court refusing to correct the record on the motion of appellant recites that: “The same is submitted on the deposition of George W. Hays, the testimony of R. D. Floyd and W. J. Pinson, and pages 540, 541, 542, and 543 of chancery record ‘F’ of Union County Chancery Court. And the court, after considering all the evidence herein and being fully advised in the premises, finds,” etc. This recital shows that the testimony of witnesses was heard in the cause, not in the form of depositions. There is copied into the transcript what purports to be this testimony taken down by a stenographer and afterwards reduced in longhand by her and certified to as follows: “I hereby certify that the foregoing is a true and correct transcript of the evidence taken by me in shorthand, in the case of C. P. McHenry et ah, plaintiffs, v. El Dorado Dumber & Planing Mill Co., defendant, taken on January 28, 1907. May Craig.” But this does not identify the testimony as that heard by the chancellor in the motion pending before him to correct the record. There is nothing to show-that this testimony was ever filed and made part of Lhe record in the cause. There is no authentication of same in a bill of exceptions under the hand of the chancellor, or in any other way, and we can not consider it. The case is ruled by Beecher v. Beecher, 83 Ark. 424, and by other cases there cited.
We must presume, in the absence of all the evidence upon which the decree was based, that it was correct.
The motion for reconsideration is therefore granted, the cause (No. 6,247) is reinstated, and the decree of the chancellor is reversed for the reasons stated in the opinion heretofore rendered.
Rehearing
on second rehearing.
On the 3d day of August, Guy Murphy, receiver, presented a petition for a rehearing. His grounds were as follows:
“That the bank, by agreeing that the evidence in No. 6,616 be treated as depositions, waived any objection it might make to its not being made part of the record by bill of exceptions.
“That the failure to brief case No. 6,616 by the bank was due to the negligence of its counsel.
“That the evidence in No. 6,247 was taken orally in open court, but is not made part of the record by bill of exceptions, and the decree of the chancellor therein should be affirmed as is similarly held by the court in No. 6,616.”
He now shows to the court that his attorney, on the 26th of August, took the transcripts of said cases out of the office of the clerk of this court in order that he might brief his said motion for rehearing, and that the grip containing the same was stolen; and he asks time in which to furnish the court with additional transcripts in lieu of the ones lost, and to prepare briefs, and says it will be about four weeks before the transcripts can be supplied.
The court would be inclined to grant the petition for time if the motion for rehearing could be availing; but the matters now sought to be reviewed were thoroughly and exhaustively considered by the court, and are discussed in the opinion. The transcripts were examined carefully by the judges in consultation, and the conclusion was reached after the most patient and careful investigation. For this reason, the petition for time is denied, and the motion for rehearing is overruled.