Boynton v. Crockett

• Decision Date: 18 July 1902
• Citation: 69 P. 869,12 Okla. 57,1902 OK 49
• Parties: BOYNTON et al. v. CROCKETT et al.
• Court: Oklahoma Supreme Court

69 P. 869

12 Okla. 57, 1902 OK 49

BOYNTON et al. v. CROCKETT et al.

Supreme Court of Oklahoma

July 18, 1902

Syllabus by the Court.

1. Where a motion for new trial has been pending for several years, and there is no record, minute, memorandum, or moniment to indicate that such motion has ever been acted upon by the court, oral evidence alone will not be sufficient upon which tobase an entry nunc pro tune.

2. Where a motion for new trial is field, and the judge who tried the cause retires from the bench leaving such motion pending undisposed of, his successor will ordinarily grant a new trial, where the motion involves a review of the evidence taken onthe trial and the proceedings before the former judge, and the same has not been preserved by bill of exceptions or other record, so the new judge can review the grounds for new trial.

3. The law makes it the duty of the clerk to record the judgments orders, and proceedings of the court, and when so entered upon the records or journal of the court such records import absolute verity, and can only be changed or modified by theorder of the court, and such records or journals need not be signed by the judge in order to give them validity.

4. The practice of preparing and presenting journal entries to the judge for his signature is only in aid of the clerk, and for his assistance in making up his journal and recording the proceedings of the court; and where the clerk accepts and records an entry prepared by counsel on one side of the case and which has not been approved by the judge or adverse counsel, such entry, when so recorded, becomes the judgment of the court, and in case of the destruction of the journal such original entry, when identified, is a sufficient memorandum to authorize the court to direct the same entered of record to restore such judgment.

5. It is the duty of counsel to make timely examinations of the journals of the court, and see that the records correctly recite the proceedings, and, if they have objections, to present the same to the court by proper motion, and have the recordscorrected, or have omissions supplied.

Error from district court, Kingfisher county; before Justice Clinton F. Irwin.

Action by Andrew Crockett and Martha Crockett against M. Z. Boynton and others. Judgment for defendants. From an order granting a new trial, defendants bring error. Affirmed.

Boynton & Smith, J. C. Robberts, and P. S. Nagle, for plaintiffs in error.

D. K Cunningham and Buckner & Son, for defendants in error.

BURFORD C.J.

This case presents for our review the action of the trial court in sustaining a motion for a new trial. In 1896 Andrew Crockett and Martha Crockett brought an action in the district court of Kingfisher county against M. Z. Boynton, F. L. Boynton and C. W. Smith to have canceled certain deeds and instruments affecting real estate in Kingfisher county, on the grounds of fraud, forgery, duress, and other causes. Issues were formed, and the cause was tried to the court, the Honorable John C. Tarsneybeing at that time the presiding judge. The court found for the defendants, and judgment was rendered against the plaintiffs on November 18, 1898. On November 18, 1898, the plaintiffs filed a motion for a new trial, and the ruling on this motionpresents the question in controversy in this cause. On September 25, 1901, the motion for new trial was called up by the plaintiffs, and presented to Hon. C. F. Irwin, presiding judge, for his consideration and disposition. It was contended on the partof counsel for the plaintiffs in error that this motion was acted upon and overruled at the same term of court at which it was field, and that the judgment of the court had become final. On the other hand, it was contended by counsel for defendants in error that Judge Tarsney adjourned the term of court at which the trial was had without disposing of the motion for new trial, and that prior to the next term of court he was succeeded on the bench by the Hon. C. F. Irwin as judge of said court, and that said motion was still pending for disposition. The court heard evidence both by affidavits and oral testimony as to the status of said motion. It was shown that after the trial of said cause, andprior to the hearing on said motion, all the journals and records of said court were destroyed by fire, except the appearance docket and the pleadings and a copy of a journal entry of the judgment in said cause. There was no record evidence, memorandum, or other writing of any action by the court on said motion for new trial. Several witnesses testified that it was their personal recollection that Justice Tarsney overruled the motion for new trial at the term at which it was field. It was also shownthat at the same time the defendants in error had filed a demand for a second trial, which was overruled, and it is probable that some uncertainly exists from confusion of the two motions. There is no record that the motion was ever disposed of. Thereis no presumption in favor of such action. Where a case is tried by the court, and its decision announced, it is the duty of the clerk to record such proceedings, and the...