Steverson v. McLeod Lumber Co., 81 So. 788

81 So. 788 | Miss. | 1919

Sykes, J.,

delivered the opinion of the court.

The appellant, J. M. Steverson, filed suit in the circuit-court upon an. open account for six hundred and eightyTtwo dollars and fifty-six cents. Judgment by default was taken by appellant for the principle and interest on November 18, 1918, and execution was issued upon this judgment shortly- thereafter. Appellee then filed a motion in the circuit court to quash the writ of execution, and to set aside and' vacate the judgment, assigning, among other reasons, that the-pretended judgment was rendered on the 18th day of November, 1918, on what purported to be the first day of the regular term of the circuit court of Forrest county, when as a matter of fact there could not have been a regular term of this court begun and held on this day; that the pretended November term of the court was not held at the time designated by law, to wit, the" first Monday in November, 1918, nor- was the reg: ular November, 1918, term of the court convened and held and subsequently, by legal order, adjourned to the 18th day of November, 1918, or to any other date; that for these reasons the judgment is void. This motion was sustained in the lower court, and the default judgment was set aside and the execution quashed. From this judgment this appeal is prosecuted.

Chapter 265 of the Laws of 1914, section 458 of Hemingway’s Code, provides, among other things, that a term of the circuit court of,, Forrest county shall be held on the first Monday of November for thirty days.

On the trial of the motion to quash and vacate the judgment the minutes of the court were introduced showing, the organization, and reading as follows:

“Minutes, Forrest county circuit court, November, 1918, term. Be it rémembered that there was begun and held a regular term* of the circuit court of Forrest county, at the courthouse in the city of Hattiesburg, Miss., on the third Monday of November, 1918, it being the 18th day of November, 1918, thereof; that being the time and place designated by law for the holding of said court; present and presiding the Hon. Paul B. Johnson, judge of the Twelfth circuit court district of said state, Hon. R. S. Hall, District Attorney, Jennie F. Smith, official court stenographer, A. E. Harbison, sheriff of said county, and T. J. Mixon; clerk of the circuit court.”

The appellant attempted to introduce parol testimony of the then circuit judge who hdld this term of court, of the sheriff, and of the circuit clerk, to show in effect that on the 1st day of November the circuit judge went to the office of the sheriff and had a conference with him and the circuit clerk and with some members of the bar, and decided that on account of the epidemic of Spanish influenza he would not hold court for the first two weeks, but would begin court on the third Monday of November, the 18th instant; that he told the sheriff to proceed to the courtroom and make the announcement. We might say in passing that, even if this parol testimony was admissible, it does not show that any court was held on the first Monday of November.

Section 989 of the Code of 1906 (section 709 of Hemingway’s Code) provides that if the circuit judge fail to attend at any term of court, it shall stand adjourned from day to day until the fifth day, when if the judge shall not appear and open court, it shall-stand adjourned without day; but by virtue of a written order to that effect by the judge it may be adjourned by the clerk or sheriff to the next regular term or any other earlier day as the order may direct. There - was no written order from the judge to the clerk to adjourn the court until the third Monday in November.

The parol testimony, however, attempted to be introduced in evidence by the appellant was inadmissible, because it was an attempt by parol testimony to contradict the minutes of the court, the attempt being in this case to contradict the minutes of the court which show that the court was begun on the 18'th day (third Monday) of November, by showing as a matter of fact that the term was begun on the fourth day (first Monday) of November. This exact question was presented to the court in the case of Jones v. Williams, 62 Miss. 183. In the Jones Case the effort was to contradict by parol testimony the minutes of the court to show the day of the adjournment of the court, instead of the day of the opening of court. In the Jones Case the court said:

•‘The settled doctrine seems to be that the evidence proposed to vary the date shown by the record is not admissible (citing authorities). Judicial records required by law to be kept are said to import unerring verity, and to be conclusive evidence against all the world as to their existence, date and legal consequences.”

The court reaffirmed and quoted with approval from the Jones Case in Childress v. Carley, 92 Miss. 571, 46 So. 164, 131 Am. St. Rep. 546. In the opinion in the parley Case the court quotes from Wigmore on Evidence, p. 3457, section 2450, as follows:

“The record being the sole embodiment of the judicial proceedings, no other materials or utterances, oral or written, can be set up in competition with it. In other words, hut less correctly, the record is conclusive. This is so, even .though the record has not been made up; for herein appears the compulsory nature of the rule. It must be made up, and, if it not, then in legal theory there is no judgment or legal proceeds ings; and it is always in the power of litigating parties to prevent hardship by compelling the proper officer to make up the record.”

After quoting the above text with approval the court goes on to say:

“The law requires the record to he complete and when it so purports to he on its face in law it is complete, and it is not subject to impeachment.”

Practically a similar question was again presented to the court for review in the case of Bank of Meadville v. Hardy, 94 Miss. 587, 48 So. 731. In its opinion in that case the court quotes from the Jones and Carley opinions both, and reaffirms the doctrine announced in those two cases. We therefore conclude that in this case under these authorities parol testimony was not admissible to contradict the date shown in the minutes of the court as being the first day- of that court.

Since the law provides that the regular November term of the court of Forrest county must convene on the first Monday thereof, it follows that no regular term of this court could be convened on the third Monday of November except as provided by section 989, Code of 1906, and that a court begun on this date was not a legal court, and therefore its judgments and orders Avere void, because the court was held at an unauthorized time. Arbour v. Y. & M. V. Railroad Co., 98 Miss. 714, 54 So. 158.

The case of Ex parte Neil, 90 Miss. 518, 43 So. 615, relied upon by appellant, was. one where the special term' of court had been properly called, proper notice of the time and place for holding same had been given, and the order calling this term had been made and filed with the clerk, bnt the clerk merely failed to enter this order on the minutes. In that case the court held that the failure of the clerk to enter the order on the minutes of the court did not oust the court of its jurisdiction to proceed.

The case of Wilson v. Town of Handsboro, 99 Miss. 252, 54 So. 845, Ann. Cas. 1913E, 345, deals with the power of a court to correct its judgments and records, and holds that a court has the inherent power to amend its records to make them conform to the facts and truth, or to make these records speak the truth.

In this case we are not' dealing with either of the questions presented in the Neil or Wilson, Cases. .

The judgment of the-lower court is affirmed.

Affirmed.