Dunn v. Crozier , 17 Ga. 70 ( 1855 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] Ought the Circuit Court to have discharged the rule nisi, which had been moved and -allowed for a new trial in this, case, on the ground that a brief of the evidence had not been filed in compliance with the 61st Common Law Rule of practice? That rule requires that “a brief of the testimony in the cause shall be filed by the party applying for such new trial, under the revision and approval of the Court.” And putting-a liberal construction upon the rule for the convenience of Counsel, this Court has held that the written agreement of Counsel, shall answer in the place of the approval of the Court.

Let us ascertain precisely, from the bill of exceptions, what transpired in this cause. It appears, then, from the certificate-of the Circuit Judge, “that before the rule ni. si. was granted, the Attorneys for both parties, in the presence of the Court, agreed upon the brief of testimony, and the Court then' and there assented to the same as such, and that said papers, to-wit: the motion for the new trial; the brief of. the testimony, and the order ni. si. granting a new trial, were then and there handed to the Clerk of the Court, to be entered upon the minutes thereof.”

We assume, then, that the brief of the testimony, as agreed upon by the Counsel and approved by the Court, was ordered by the Court to be entered upon its minutes, at the term at which the application for a new trial was made; and it appears, by the affidavit of Mr. Bowers, that the brief now produced from the custody of the Clerk, is the same that was filed with him. Indeed, the identity of the brief, as well as its fulness and fairness, are not questioned. Under these circumstances^ was it competent- for the party making the application to have the brief entered on the minutes nunc pro tunc ?

Had this been done, there "would have been a substantial! compliance with the rule. It ought to have been done, because it was so ordered by the Court. Shall the failure of the-Clerk to perform his duty from neglect, forgetfulness, sickness or any other cause, deprive these parties of their rights? We think not. It is the privilege of the Courts- — -yea, it is their high and imperious duty, to perfect their minutes by additions or erasures, so as to make them speak the truth, the whole truth and nothing but the truth. They should be, in fact,, what they purport to be in theory, namely: the monument of the action of the Court. ■

Nor does this opinion militate against the decision of this Court in Tomlinson vs. Cox, (8 Ga. R. 111.) There never was a brief of the testimony filed or offered to be filed in that case. Documents were referred to, which influenced the judgment of the Court in that case, which were neither filed nor offered to be filed. And while it is due to candor to admit that the interpretation of the rule in that opinion is, perhaps,, a little more strict than its language warrants or justice requires ; yet, I must say, that the decision itself ivas right, and that it does not conflict at all with the view now taken of' this case.