Ex Parte Beaird

This is an original application for mandamus to the circuit court of Etowah county, after application for relief had been made to that court by the petitioner and refused, to compel the expunction of certain alleged spurious entries made by the clerk on the minutes of the court in the case of the petitioner, who had been indicted, tried, and convicted for the offense of murder.

The facts, so far as they are material to the question presented, are: The petitioner was put on trial, under the indictment against him, before a jury, on December 6, 1926, and the trial continued from day to day until the 10th day of December, 1926, resulting in a verdict of guilty of murder in the second degree, and fixing the punishment at 23 years in the penitentiary. On the return of the verdict the trial judge made the following entry on the trial docket:

"December 10, 1926. Jury and verdict of guilty of murder in the second degree, punishment fixed by the jury at 23 years in the state penitentiary."

It is admitted by the petitioner that the day of sentence was, on his motion, postponed until the 3d day of January, 1927, and that an oral order to this effect was announced from the bench, but this order was not noted on the trial docket, nor entered on the minutes of the court.

The clerk failed to record on the minutes the judgment on the verdict of the jury during the term, but did enter a general order continuing all cases pending and undetermined, to the next term of the court.

In the motion made by the petitioner in the trial to expunge, a transcript of which is made a part of the petition here, it is averred "that on the 3d day of January, 1927, said court, before pronouncing judgment of conviction and sentence on petitioner, did overrule a motion, then and there submitted, for a new trial, and also a motion in arrest of judgment, and also after the pronouncement of judgment of conviction and sentence, and before petitioner took his appeal to the Supreme Court, the petitioner did, by leave of the court, refile his said motion for a new trial, and the same was again overruled by the court."

The entry expressing the judgment of conviction on the verdict of the jury, and reciting the presence of the defendant in court, was entered upon the minutes by the clerk of the court, or by his authority, "some time subsequent to the 3d day of January, 1927." It is this entry that petitioner seeks to have expunged, on the ground, as we understand his contention, that the entry made by the clerk on the minutes after the adjournment of the court for the term ending December __________, 1926, was without legal authority.

We judicially know that the term of the circuit court in which the verdict in petitioner's case was returned expired, by operation of law, on the last Saturday before Christmas Day, 1926, and that January 3, 1927, was the first day of the next regular term of the circuit court. Code of 1923, § 6667. So the question is: What, if any, authority resided in the clerk of the court to record the judgment of the court on the minutes, at the succeeding term, after the judgment of conviction and the sentence of the law were pronounced by the court on January 3, 1927?

The general rule is that, when a court exhausts its jurisdiction in the final disposition of a case, in the absence of a statute otherwise providing, it has no authority after the expiration of the term to alter or modify its judgments, except for the correction of clerical misprision, or to amend nunc pro tunc so as to make the record speak the truth. Ex parte State (In re Newton), 94 Ala. 431,10 So. 549.

It is also the rule in our jurisdiction that clerks of circuit courts have no authority to make entries on the minutes of the court while the court is in vacation, though such entries are made in accordance with the bench notes of the trial judge; this for the reason that the statute contemplates that all such entries shall be made in term time under the supervision of the court. Wynn et al. v. McCraney, 156 Ala. 630,46 So. 854; Campbell v. Beyers, 189 Ala. 307, 66 So. 651; Lockwood v. Thompson Buchmann, 198 Ala. 295, 73 So. 504; Wilder v. Bush, 201 Ala. 21, 75 So. 143; 15 C. J. 976, § 395.

On the other hand, so long as the proceedings in a pending cause are in fieri, the court retains its jurisdiction and authority to complete the proceedings and render a final judgment disposing of the controversy. Charles v. State, 4 Port. 107; Clanton v. State, 96 Ala. 111, 11 So. 299; Wright v. State, 12 Ala. App. 253, 67 So. 798; Bachelor v. State,216 Ala. 356, 113 So. 67; Note, 3 A.L.R. 1012; Miner v. United States, 244 F. 422, 157 C.C.A. 48, 3 A.L.R. 995.

If it should be conceded that the general order of continuance entered upon the minutes of the court was inefficacious to prevent a chasm, and a discontinuance resulted from the failure of the court to enter upon the trial docket the special order postponing the day of sentence, at the instance of the petitioner, or caused the same to be entered upon the minutes, the action of the petitioner in presenting the motion for a new trial was a waiver of the discontinuance. Clanton v. State, supra; Torrey v. Forbes, 94 Ala. 135,10 So. 320; Ex parte Hall, 47 Ala. 675; Walker v. Cuthbert Stanly,10 Ala. 213.

The petitioner's case was pending and undetermined when the court adjourned for the (1926) term, and the general order of continuance regularly entered upon the minutes of the court preserved the continuity of the proceedings and the circuit court's jurisdiction to pronounce the judgment of conviction and sentence at the succeeding term. Charles v. State, supra; Clanton v. State, supra; Wright v. State, 12 Ala. App. 253,67 So. 798; and cases cited in note 3 A.L.R. 1012.

After the pronouncement of the judgment of conviction on the verdict of the jury, at the January term (1927), it became the clerk's duty, and he was acting within his authority in entering the judgment on the minutes of the court.

The peremptory writ of mandamus is therefore denied, and the petition dismissed.

Mandamus denied; petition dismissed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.