Short v. Ed. Kellogg & Co. , 10 Ga. 180 ( 1851 )

By the Court.

Lumpkin, J.

delivering the opinion.

Did the Court err in refusing permission to the defendant in ca. sa. to prove by parol, a judgment of non-suit in his favor, after the lapse of ten years, and have the same entered, nunc pro tunc ?

[1.] On no point, perhaps, is there a greater conflict and contrariety of decisions, than the allorvance of amendments to records and judicial proceedings. At the Common Law, no judgment was amendable after the term at which it was entered, (3 Black. Com. 407. 1 Bacon's Abr. tit. Amendment, G. p. 167. 2 Sellon’s Pr. 458,) and following the English rule, the Courts in Kentucky and Ohio have decided,' that a nunc pro tunc order cannot be made out at a subsequent term, nor can a nunc pro tunc order be founded upon parol proof of what was ordered to be done at the previous term. Ohio Cond. Rep. 168. Green vs. Dodge, Ibid, 638. 1 J. J. Marshall’s R. 365.

So in Mssissippi, it has been held, that the notes made by the Judge on the docket, constituted no part of the record, and were not evidence for any purpose, not even to authorize an amendment or correction to be made by the Judge himself, of his own proceedings ; that they were even more objectionable than parol evidence. Burney vs. Bryt, 1 How. Rep. 39. Orne, appellant, vs. Sullivan, 3 How. R. 161.

On the other hand, in The State vs. King, (5 Ired. Rep. 203,) Judge Griffin said, that the Supreme Court of North Carolina had so frequently had occasion to declare that the power resides in every Court to amend the entry on the minutes, or the record of its orders and judgments, nunc pro tunc, that he supposed the point would be made no more, and in Gallenary vs. McKeithen, (Ibid, 12,) it was held that a Court has a right to amend the records of any preceding term, by inserting what has been omitted, either by the act of the Court or of the Clerk, and that accordingly the County Court of Brunswick, at the December session, 1842, had a right to amend an omission in the record of the same Court, which had taken place at June Term, 1837, five years previously.

And between these extremes, there is every imaginable variety of adjudication.

Under these circumstances, we are unable to prescribe any definite rule of universal application, even in England, where it is stated that no amendments are allowed to be made in the process, pleadings and proceedings, only where the cause stood in paper, and before the judgment is given and enrolled. We meet, unquestionably, with some striking exceptions to the doctrine.

In Cogan vs. Elden et al. (1 Burr. 583,) Lord Mansfield presiding, the verdict was amended from the Judge's notes, and the affidavits of the Jurors who rendered it. Judgment against an executor de bonis propriis, wms amended by making it de bonis test, et si. non, &c. after writ of error brought mil tiel record pleaded, and argument in the Exchequer Chamber. Short vs. Coffin, Ex. 5. Burr. 2730. Dougl. 116. Postea amended by the Judge's notes after final judgment and lapse of two years. 3 Durnf. & East, 749. And for numerous cases of amendment of postea verdict, judgment, &c. by the Judge's notes, after error and joinder, see 2 Sellon's Pr. 408, ch. 9, §8, letter d.

And Mr. Tidd, in his excellent work on Practice, has laid this down on the clear doctrine of the Courts, in all cases of ordinary suits, (excluding fines and recoveries,) that judgments and records are allowed to be amended — 1st, where the case is within some Statute — or 2d, where there is something to amend by, “that is, where there is some memorial paper or other minute of the transactions in the case, from -which, what actually took place in the prior proceedings, can be clearly ascertained and known.” 1 Tidd's Pr. (9th ed. 1828,) 711, 712.

[2.] With this latitude of distinction, I am inclined to think, that had the motion in this case been made before me, I should have allowed the amendment, believing from all the testimony, that the purposes of justice would have been aided by it, especially, taking into the account the very loose manner in which records have been kept in this State. Still, we are unwilling to control the presiding Judge in the exercise of his discretion, in view of all the facts before him, and consequently affirm the judgment.