54 So. 845 | Miss. | 1911
The effort here is to have the court correct a judgment rendered at a former term, which judgment recited that the demurrer to a plea of former jeopardy had been overruled, by showing that in truth and in fact the demurrer had been sustained, and that the mis-entry was due solely to a clerical omission by the clerk. In other words, the effort is to make the record speak the truth, to recite the judgment which the court actually rendered, instead of a judgment the direct opposite of the one which the court had actually rendered.
This is a criminal case. Consequently section 1016 of the Code of 1906, which is section 940 of the Code of 1892, has no application. See McCarthy v. State, 56 Miss. 294. Some of the earlier authorities in this state on power of the court to correct a judgment rendered at a former term, so as to make it speak the truth, are collected in'this case. All of them may be found set out in note 1 at page 99 of the first volume of Freeman on Judgments. It is undoubtedly true that these earlier authorities hold that no such correction could be made, even by resort to memoranda made by the judge. This was found to be entirely too harsh a rule, and so in the progress of our jurisprudence section 940 of the Code of 1892 was passed, which expressly provided'that “such correction could be made by the docket or other memo randa by the judge or chancellor.” This clause of said section 940 was intended to change, and, of course, did effectually change, the rule that the docket or memoranda of the judge could not be used as the evidence whereby to make such correction. But this section 940 of the Code of 1892 (section 1016 of the Code of 1906) relates only to civil cases.
In Mars v. Quin, 6 Term R. 8, Lord Kenyon, C. J., says: “The forms of the court are always best used when they are made subservient to the justice of the case.” And Ashhnrst, J.,'observed: “It is admitted that amendments have been made at all times in order to forward the justice of the case.” In that case the •court put the judgment forti manu two years back to prevent injustice, because it could not injure third persons. In King v. Mayor of Qrampond, 7 Term E. 699, Lord Kenyon says: “I wish that that could be attained that Lord Hardwicke, in the case before him, lamented could not be done, namely that these amendments were reduced to certain rules; but, there being no such rules, each particular case must he left to the sound judgment of the court. And the best principle seems to be that on which Lord Hardwicke relied in that case, that an amendment shall or shall not he permitted to be made as it will best tend to the furtherance of justice. Amendments of this kind are not made under the statute of jeofails, hut under the general authority of the court.”
We think it is perfectly clear that this power, with which we are dealing, the one to correct a judgment rendered at a former term, not in some clerical matter merely, as to name or amount, hut so as to strike out a judgment erroneously entered by mistake of the clerk, and substitute for it the wholly different judgment act ually rendered by the court, is a power inherent in every court of record, and not derived from any statute.’ There seems, indeed, to be no controversy as to the right to exercise this power. In this state, In the case of Forbes v.
The very best and clearest authority we have seen upon this subject is the case of Frink v. Frink, 43 N. H. 508, 80 Am. Dec. 190, 191. In that case the court said:
“Every court exercising a continuing jurisdiction, having an office for the preservation of its records, and the charge of those records by a proper officer, has by law an implied authority to amend its records, to make them conform to the facts and truth of the case. Remick v. Butterfield, 31 N. H. 70, 64 Am. Dec. 316; Dudley v. Butler, 10 N. H. 284; Willard v. Harvey, 24 N. H. 344; Claggett v. Simes, 31 N. H. 23. Or, as the same doctrine is well expressed by Fletcher, J., in Balch v. Shaw, 7 Cush. (Mass.) 284, there can be no doubt that it is competent for a court of record, under its general inherent and necessary authority, to correct the mistakes and supply the defects of its clerk or recording officer, so as to have the record conform to the actual facts and truth of the case. And this may be done at any time, as well after as during the term. The length of time in this case
“It is contended, and so are some of the authorities, that an amendment of a record cannot be made unless there is something to amend by, by which is understood something upon the files or'records-of the court. Wendell v. Mugridge, 19 N. H. 112; Atkins v. Sawyer, 1 Pick. (Mass.) 354, 11 Am. Dec. 188; Grenvile v. Smith, Cro. Jac. 628; Mason v. Fox, Cro. Jac. 632. But in other cases such amendments have been made according to the minutes of the judge. Coughran v. Gutcheus, 18 Ill. 390; Brady v. Little, 21 Ga. 132; Petrie v. Hannay, 3 Term R. 659; 1 Tidd’s Pr. 661; Newcombe v. Green, 1 Wils. 33, 2 Str. 1197; Eddowes v. Hopkins, 1 Doug. 376; Tarlton v. Fisher, 2 Doug. 672. Here we have the minutes of the judge, and counsel entirely clear upon the point. But we think it clear, upon the authorities, that the court may make such amendments upon any competent legal evidence, and.that they are the proper judges as to the amount and kind of evidence requisite in each case to satisfy them what was the real order of the court, or the actual proceeding before it — what was the proper entry to be made on the docket, and how the record should be extended Fay v. Wenzell, 8 Cush. (Mass.) 317; Balch v. Shaw, 7 Cush. (Mass.) 284; In re Limerick, Petr., 18
See, also, Freeman on Judgments, vol. 1, §§ 70, 71; Black on Judgments, vol. 1, §§ 161, 165. See, also, 30 Century Digest, Judgment, § 623. These authorities certainly settle beyond controversy the power of - the court at a subsequent- term to so correct a judgment, entered by mistake of the clerk at a former term incorrectly, as to make it speak the truth, -by then entering up the true judgment actually entered at the former term by the court.
The remaining question is, simply, What evidence is it competent for the court to hear on such motion? As stated, in the earlier decisions of this court, referred to supra, most of which, however, were in civil cases, it was held that no parol evidence, nor any evidence, except record evidence, was competent. But in the Navra case, just cited, and in Cotten v. McGehee and in Powers v. State, this rule was manifestly departed from. In the Navra case, there was no evidence at all; but the court acted upon the presumption that the judge had directed the proper judgment to be entered. In Powers v. State, it is said that the court advised itself in the premises. We cannot conceive how it did so, except by parol proof. The United States Supreme Court, in Murphy, Administrator, v. Stewart, Administrator, 2 How. 263, 11 L. Ed. 261, like the New Hampshire case, supra, deals fully with the matter, and holds parol proof competent, citing many authorities. Mr Freeman, in concluding his review of the matter (volume 1 on Judgments), speaks thus: “The law in relation to amendments, as stated by Lord Coké, and as it undoubtedly existed until long after his time, was too harsh to successfully resist the march of legal
■Black on Judgments, vol. 1, § 165, speaks to this point as follows: “The rule that ‘a record can only be amended by matter of record’ seems to rest, in the last analysis, upon the rule that ‘a record imports absolute verity.’ Without losing sight of the extreme importance of securing stability and authority to the solemn memorials of the courts, we may still conceive that this rule, if applied with full vigor and severity, might in many cases produce the greatest hardship and injustice. But it is evident to a student of American case law that we are gradually working away from the old standards in this respect. The courts ‘are more and more disposed to a liberal practice, and to look to the full and perfect administration of justice, rather than to buttress up the sanctity of records by forbidding inquiry into their truth. Hence it" is not improbable that the policy of permitting jiidgments to be amended upon cause shown by any
Authorities could be multiplied indefinitely in support of this view. We are convinced, from a full and careful consideration of all the authorities, that the true view is the one stated by the supreme court of New Hampshire in Frink v. Frink, supra, and that, so far as competency of the evidence is concerned, any evidence of parol or other kind is competent, which.throws material light on the truth of the matter, but that, of course, where there is nothing but mere memory, or parol evidence, such evidence should be very carefully and closely scrutinized. It would be a gross perversion of justice to exclude as incompetent parol evidence which might be overwhelming, as showing the error, merely because it is parol evidence. It is enough to say that, when the evidence is wholly by parol, it should receive the strictest scrutiny.
Applying these principles to the facts in this case, the judgment was properly corrected. Affirmed.
The above opinion is adopted as the opinion of the court, and for the reasons therein indicated the judgment is affirmed.