Clardy v. Clardy , 23 Tenn. App. 608 ( 1939 )

On Motion to Remand. This is a divorce suit. Hobart Clardy filed the original bill seeking a divorce from his wife, Hattie M. Clardy. The defendant answered the original bill and filed her answer as a cross-bill. The cross-defendant answered the cross-bill. The Trial Judge heard the case without a jury and rendered a decree dismissing Hattie M. Clardy's crossbill and granting the original complainant Hobart Clardy, an absolute divorce from the defendant Hattie M. Clardy.

On appeal of Hattie M. Clardy, this Court, by opinion filed and decree entered on October 28, 1939, affirmed the aforesaid decree of the Circuit Court. Thereafter, in due season, the appellant, Hattie M. Clardy, filed a petition for a rehearing, which petition was predicated upon the insistence that this Court had overlooked a material fact disclosed by the testimony of Hattie M. Clardy and admitted by the testimony of Hobart Clardy, viz: a letter written by complainant Hobart Clardy to defendant's brother, William Mitchell, which, it was contended, was "libelous," in that, it charged defendant Hattie M. Clardy with the commission of a felony (concealing stolen property).

Said petition for a rehearing was denied and dismissed by this Court on November 13, 1939, for reasons stated in our opinion then filed and now a part of the record, but which reasons we summarize as follows:

(a) No reference was made to said letter in any pleading on which the case was tried below, and "proof without pleadings will not support a decree" (citing Code, Section 8430, and Beard v. Beard, 3 Tenn. App. 392).

(b) The cause was tried on February 16, 1939, in the court below, on the pleadings and proofs, and the Court took the case under advisement until February 21, 1939, when the decree granting complainant a divorce and dismissing defendant's cross-bill was pronounced and entered. On the latter date (which was five days after the trial) the defendant moved for leave to file an amended and supplemental cross-bill, which motion was overruled by the Trial Court, and such ruling was entered on the minutes of the Court. On February 22, 1939, defendant and cross-complainant, Hattie M. Clardy, filed a "motion for a rehearing" (described in the minutes below as a "motion for a new trial") which was overruled by the Trial Court. Said motion consisted of three numbered paragraphs, and the third paragraph thereof was as follows:

"The Court erred in refusing to allow filing of Amended Supplemental Bill offered by defendant and cross-complainant Hattie M. Clardy, which said bill is hereto appended marked Exhibit ``A', as a part hereof, and is again submitted to the Court for filing in said case."

The aforesaid motion and the offered amended and supplemental bill (Exhibit "A" to the motion) were preserved by the bill of exceptions, and it appears from said Exhibit that it was therein alleged that, on January 17, 1939, and subsequent to the date of filing said original cross-bill herein, said Hobart Clardy wrongfully, unlawfully, feloniously and maliciously charged cross-complainant with the felonious crime of concealing stolen cigarettes in a letter written on said date and delivered to her brother, William Mitchell, on or about said date, for the purpose of intimidating her and preventing her from prosecuting her said cross-bill.

(c) The action of the Trial Court in overruling the motion of defendant, Hattie M. Clardy, for leave to file an amended and supplemental cross-bill is not open for review by this Court, for the reason that appellant Hattie M. Clardy has not assigned such ruling as error. The appellant's assignments of error are copied in full in our said opinion of November 13, 1939, and it is there stated that "we find nothing in appellant's assignments of error which could be construed or interpreted as an assertion that the Trial Court erred in his ruling upon defendant's motion for leave to file an amended and supplemental cross-bill; and, without the supplemental cross-bill, there was no pleading which would justify the consideration of the evidence relating to the aforesaid error."

On November 20, 1939 (which was subsequent to our opinion and judgment on the aforesaid petition for a rehearing), the appellant, Hattie M. Clardy, by written motion filed in her behalf on that date, moved this Court to remand this cause to the Circuit Court of Davidson County for the correction and reformation of the decree of that Court overruling the motion of Hattie M. Clardy for a rehearing, by the entry of a nunc pro tunc order or decree in and by said Circuit Court so as to limit the overrulement of said motion for a rehearing to the first and second grounds thereof, and to sustain the third ground of said motion (hereinbefore quoted) and set aside the previous order entered in the Circuit Court overruling defendant's motion for leave to file said amended and supplemental cross-bill.

As we read the motion now before us and the accompanying affidavit, it is not claimed that the transcript filed here is not a true and correct transcript of the proceedings in the causeas they appear of record and on file in the Trial Court; but it is asserted in the motion, and stated in the supporting affidavit of the attorney of record for the movant, in substance, that the minutes of the Circuit Court do not correctly show the ruling of that Court on the motion for a rehearing there made by Hattie M. Clardy, in that, as a matter of fact the Court did not overrule the aforesaid third ground of said motion, but granted same and set aside a former order denying Hattie M. Clardy's application for leave to file an amended and supplemental cross-bill, and directed that said amended and supplemental cross-bill be filed; but that the clerk of the said Circuit Court erroneously entered the order overruling the entire motion for a rehearing (as it appears in the transcript here), and the state of the record in this respect was not discovered by the affiant until he read the opinion of this Court filed on November 13, 1939, denying and dismissing Hattie M. Clardy's petition for a rehearing.

Notwithstanding the facts thus disclosed by the affidavit of the eminent counsel, whose high character for probity and integrity leaves no room for doubt of the accuracy and entire truthfulness of his statements, we are of the opinion that, under long-established and inflexible rules, we are without power and jurisdiction, upon the record in this case, to grant the motion to remand for the purpose stated.

Prior to the Act of 1855-56, chapter 70, Sections 2 and 3, codified in 1858 (with material amplifications) as Sections 2877, 2878 and 2879, and subsequently carried into Shan. Code as Sections 4597, 4598 and 4599, and finally codified in 1932 (with certain immaterial verbal modifications) as Sections 8721, 8722 and 8723, it was held that a judgment or decree, entered improperly by the misprision of the clerk, could not be amended at a subsequent term, except "by the record or some matter in the nature of a record, and having the verity of a record." Williams v. Tenpenny (1850), 11 Humph., 176, 179; Ballen v. Farnsworth, 1851, 1 Shan. Cas. 58.

But, under the existing law (Code, Section 8721), "Any court of record may, at any time within twelve months after final judgment or decree, and while the cause is still in such court, amend any clerical error, mistake in the calculation of interest, or other mistake or omission in the judgment or decree, where there is sufficient matter apparent on the record, the papers in the cause, or entries of a presiding judge by which to amend."

In Carney v. McDonald, 10 Heisk., 232, 236, it was held that, in undertaking to correct a clerical error, mistake or omission in a judgment or decree, under the authority of the aforesaid statute, the court is exercising a "special jurisdiction — a jurisdiction which, by the principles of the common law, he could not have exercised," and that it is essential to the validity of such an order that it should show "either that the error was apparent on the record, or in the papers, or on the minutes of the Judge."

The case of Justus v. State, 130 Tenn. 540, 543, 546, 172 S.W. 279, 281, was before the Supreme Court on a motion to have the cause remanded to the Circuit Court, to the end that certain alleged clerical errors in the judgment of the Circuit Court might be corrected. It was there held that the Supreme Court should not remand for such amendments of the records of the lower court, unless it appeared to the Supreme Court "that the records, papers, or entries in the court below show sufficient facts to give that court jurisdiction to make the desired correction upon the remand of the cause."

In Scopes v. State, 152 Tenn. 424, 429, 278 S.W. 57, 58, the aforesaid ruling in Justus v. State was approved, and a similar motion to remand for the correction of a clerical error was denied, with the statement by the Court that, "there is nothing before us to show that sufficient facts exist to give the court below jurisdiction to make the desired correction."

The affidavit of counsel, tendered in support of the motion to remand in the instant case, does not purport to point out any "matter apparent on the record, the papers in the cause, or entries of a Presiding Judge" by which the amendment sought could be made in the Court below, but purports to be based alone upon the recollection of the affiant as to what transpired in the Trial Court. This is not sufficient. The jurisdiction to make such corrections is conferred by the aforementioned statutes, and cannot be exercised in the absence of the evidence prescribed by the statute.

The motion of Hattie M. Clardy to remand the cause to the Circuit Court for the purpose indicated, is overruled and denied, at her cost.

Crownover and Felts, JJ., concur.