Ward v. Magness
86 S.W. 822
Ark.
1905
Check Treatment
Hiuu, C. J.,

(after stating the facts.) The sole question for determination is the amendment of the record by the nunc pro tunc order of September 3, 1902. In Morris v. Dooley, 59 Ark, 483, an order like the one in question was held void on collateral attack because thе record failed to show affirmatively that the child was a resident of the county where the order was made. Recognizing thе invalidity of the order on its face, the appellee, as soon as she learned its validity was disputed by the widow and next of kin, applied ‍​​‌‌​‌‌​‌​​​​​‌​‌‌​​​‌‌​‌​​​​‌​​‌​‌​​‌​‌‌​​​​​‌​‍to the probate court to correct the order, alleging that by clerical error it did not speаk the truth, and that in truth the jurisdictional fact of residence was shown and adjudicated, and asking that the record be amended tо show such to have been the truth of the case. Issue was joined and tried in the probate court and again in the circuit court, each court finding that in fact it was shown and adjudicated that Ida Bell Adams was a resident of Independence County аt the time of the original entry.

In Bobo v. State, 40 Ark. 224, the decisions in this State' and elsewhere on amending records nunc pro tunc were reviewed by Chief Justice English, and he announced the rule on the subject as follows: “Courts have a continuing power over their records not affected by the lapse of time. Should the record in any case be lost or destroyed, the court whose record it was possesses the undoubted power, at any time afterwards, to make a new record. In doing this it must seek information by the aid of such evidence as may be within its reach tending to show the nature and existence of that which it is asked to establish. There is no reason why the same rule should not apply when, instead of being lost, the record was never made up, or was sо made up as to express a different judgment than the one pronounced by the court. Hence the general rule that a record may be amended, not only by the judge’s notes, but also by other satisfactory evidence.” This case has oftеn been followed and'applied by this court. The evidence upon which the amendment was made in the probate сourt, and upon which it was sustained in the circuit court, was chiefly of the probate judge who made the order, and Mr. Six, the justice of the peace who procured it. These men knew Johnson well, and knew the child and the circumstances under which Johnson had taken and reared her. A brother of the child had been taken ‍​​‌‌​‌‌​‌​​​​​‌​‌‌​​​‌‌​‌​​​​‌​​‌​‌​​‌​‌‌​​​​​‌​‍and reared by the wife of the probate judge, and he had been at Johnson’s house, and had seen the child an inmate of his household. They were fully cognizant of the fact thаt the child and Johnson were residents of Independence County, and that the child had always been a resident of that cоunty. Whether evidence of this fact was formally introduced is doubtful, but that in an informal way this fact was brought home to the probate judge, there is no doubt. Whether in fact he made a formal adjudication of. the residence of the child is thus stated by him: “The seсtion (of the act) says that where any person desires the adoption of a child he shall file a petition in the county where the child resides. * * * As I stated, it has been a long time; but if the law had not been complied with, I would not have made the order.” “Did you notice the act at the time?” “I cannot remember.” “When the proceedings came up before you, did you examine the act?” “I believe the order reflected that. I cannot remember every transaction.” “If there is an omission in the entry of the order failing to show in what county she resided, was that omission made in your order as'probate judge, or is it an еrror on the part of the clerk in making the entry?” “If the order is not as full as the law requires, it was an oversight on the part of the clerk in making the entry.”

Again the judge said: “You investigated at the time to see whether or not she was a resident of the county, so that you could see whether ‍​​‌‌​‌‌​‌​​​​​‌​‌‌​​​‌‌​‌​​​​‌​​‌​‌​​‌​‌‌​​​​​‌​‍or not you had jurisdiction to make the order?” “I am satisfied I did. If I had not had jurisdiction, I would not have madе it.”

Mr. Six testifies that he called the attention of the judge to the act, as it was a new act at that time and found in the printed acts. The order its’elf reflects, as stated by the judge, that the act was brought to the attention of the court. Upon this and othеr evidence the circuit judge has found as a fact that the jurisdictional part of the order was actually made and omitted by the clerk in writing it up. That finding is conclusive in this ‍​​‌‌​‌‌​‌​​​​​‌​‌‌​​​‌‌​‌​​​​‌​​‌​‌​​‌​‌‌​​​​​‌​‍court where there is any legally sufficient evidence to sustain it. In view of this evidence and the undisputed jurisdictional element being existent and known to the party procuring and the party making the order, and the еvident desire and intention to put into the order every necessary finding to make it comply with the requirements of the act, the court cannot say that the finding of the circuit court is without evidence to sustain it.

The appellants contend that the stаtus was fixed and unalterable by the death of Johnson. The authorities cited are to instances where omitted acts arе attempted after the death of ‍​​‌‌​‌‌​‌​​​​​‌​‌‌​​​‌‌​‌​​​​‌​​‌​‌​​‌​‌‌​​​​​‌​‍a party or the fixing of rights, and properly hold that void proceedings cannot be cured by subsequent acts, such as the filing of the adoption instrument in Tyler v. Reynolds, 53 Ia. 146, after the death of the adoptive father, when the law required this act of him, and instances on collateral attack, .where a void judgment is sought to be amended to prevail over acquired rights, like Gregory v. Bartlett, 55 Ark. 36, and the subsequent appeal in Morris v. Dooley, which was affirmed orally in this court. This is not such a case as any cited. These heirs cannot have a vested right in an error. No one acted upon it except Johnson and the adopted daughter. No one changed their position on account of it. The error mеrely defeats Mrs. Magness of the inheritance vested in her by law. The court has. found upon legally sufficient evidence that it was a mere error of the clerk; and, it being clearly within the province of the court to correct such errors, and the correction being made, the order stands as it was originally intended and made, and must be given effect accordingly. 1 Freeman on Judgments, 74; Galloway v. McKeithem, 42 Am. Dec. 153; Jones v. Lewis, 47 Am. Dec. 153; Remick v. Butterfield, 64 Am. Dec. 316.

The judgment is affirmed.