46 Neb. 850 | Neb. | 1896
The history of this case has been somewhat eventful, and its result is to present to us now for review questions of practice rather than questions of substantive law. The action was begun by the school district to recover damages upon a bond alleged to have been executed by Henry O. Bishop as principal and the other defendants as sureties, conditioned for the faithful performance of a contract whereby Bishop undertook to construct for the school district a certain schoolhouse, it being alleged that the contract provided that Bishop should assume all risk of losses by fire, water, or accident during the progress of the work, and deliver to the school district the building complete at. a time specified. The breach alleged was that while the-work was in progress a violent wind-storm occurred, destroying the building, and that Bishop had failed and refused to replace it, to the plaintiff’s damage. An answer and a reply were filed presenting a number of issues for trial. In June, 1888, an order was made referring the case to a referee to hear and determine the facts and report his findings cm the first day of the following term of court. It does not appear whether or not this order of reference-was made by consent of the parties, but no exception was taken thereto; so the question is immaterial so far as the-validity of the order is concerned. Subsequently an order was made extending the time for report. This order was made October 16, 1888, and directed the referee to report on the first day of the next term of court. The record presents some question, as to whether the report was filed within time. It was filed December 27, 1888, and the record being silent as to the dates when the different terms were held, it must be presumed that the report was filed
An examination of the Code of Civil Procedure, and of
We are thus brought to the proceedings of 1891 and 1892. It is strenuously argued that the nunc pro tunc ■order was erroneous, not because it was not entered in accordance with the facts, but because it was made on oral testimony alone, without any support; from the judge’s minutes, the files, or other entries of record ; and cases are cited which hold that a nunc pro tunc order for the purpose of supplying the record must be based on some entry and cannot be made to depend upon oral testimony. We think that the weight of authority is now contrary to this view; and' that the action of the court was fully warranted by our own decisions. In Garrison v. People, 6 Neb., 274, a criminal case, the record failed to show the finding of the indictment, and at a subsequent term of the court a nunc pro tunc order was entered supplying this defect. This action was sustained, the court holding that a court of ¡record has authority to make an entry as of the date when it should have been made, to conform to the facts; and that <£this may be done upon the judge’s notes or any other satisfactory evidence.” In Sullivan Savings Institution v. Clark, 12 Neb., 578, it was held that the judge’s minutes are prima facie evidence of the proceedings, but may be shown to .differ from the judgment actually rendered. Brownlee v. Davidson, 28 Neb., 785, and Hoagland v. Way, 35 Neb., 387, also assert the full power of the court to amend its record to conform to the facts. Of the propriety of this rule we have not the slightest doubt. The record when made up imports absolute verity. In collateral pro-’ ■ceedings and for purposes of review in this court, it is unimpeachable. This is an elementary rule which we have had frequent occasion to enforce. Its existence is of itself a sufficient reason for sustaining the power of the court making the record to see that it becomes in fact what it is in law — an absolutely truthful record of what in fact oc
Judgment affirmed.