Campbell v. Byers

• Decision Date: 07 November 1914
• Docket Number: 645-647
• Citation: 189 Ala. 307,66 So. 651
• Parties: CAMPBELL v. BYERS et al.
• Court: Alabama Supreme Court

66 So. 651

189 Ala. 307

CAMPBELL v. BYERS et al.

Nos. 645-647

Supreme Court of Alabama

November 7, 1914

Appeal from Circuit Court, St. Clair County; J.E. Blackwood, Judge.

Ejectment by A.O. Campbell against Maggie Byers and others.From an order overruling plaintiff's motion for entry of judgment on the verdict, and from an order granting a motion to expunge a judgment entered by the clerk of court, plaintiff appeals.Affirmed as to defendant's motion to expunge the judgment, and reversed as to plaintiff's motion for the entry of judgment.

M.M. &amp Victor H. Smith, of Pell City, for appellant.

James A. Embry, of Ashville, for appellees.

SAYRE J.

Appellant brought his action of ejectment to the March term, 1912, of the circuit court of St. Clair, defendants(appellees) being duly served.Upon the minutes of that term there appears an entry in due form reciting a jury and verdict for plaintiff and thereupon a judgment that plaintiff have and recover of defendants the land described in the complaint.At a subsequent term defendants showed to the court that the entry purporting to be a judgment had been spread upon the minutes by the clerk after the term of the court had expired and moved that it be expunged.It was so ordered.In a separate proceeding by way of counterstroke, plaintiff showed to the court a written indorsement upon the summons and complaint purporting to be the verdict of a jury finding for the plaintiff for the land described in the complaint and signed by the foreman; and upon this moved the court to enter judgment accordingly.Plaintiff undertook to show nothing more than the verdict.It appeared that there had been no bench note or other memorandum directly evidencing the fact that a verdict had been rendered or that the court had passed judgment in pursuance of the verdict.The record, the whole of which we must presume was before the court, showed however that at the trial term defendants had made a motion to set aside the verdict and for a new trial, which motion had been overruled.Plaintiff's motion that judgment be entered on the verdict was overruled.Plaintiff has appealed from both rulings, and the records are submitted here as one case.

In its ruling on defendants' motion the court was right.In Wynn v. McCraney,156 Ala. 630, 46 So. 854, upon consideration of relevant statutes and the dangers of such practice, if allowed, it was deliberately adjudged that the clerk has no power or authority to enter judgment in vacation, even though there was in that case a docket memorandum by the judge which would have sufficed to authorize a judgment nunc pro tunc at a subsequent term.It follows that an entry so made is no record.The purpose of a record once established by competent judicial authority is that it shall stand as a perpetual memorial of the action taken and is incontestable as a record save for causes and by methods within the exclusive power of the court of chancery.Nor may the court which has rendered a judgment alter or amend the same, after the adjournment of the term "except for a clerical error or omission on evidence shown by the record."Briggs v. T.C.I. Co.,175 Ala. 130, 57 So. 882;Chamblee v. Cole,128 Ala 649, 30 So. 630.But courts have inherent power to preserve the integrity of their records and may make orders necessary to that end.Here the judgment entry was false, in that it was not made by authority and the court properly ordered it to be expunged.

We have reached the conclusion, however, that on plaintiff's motion he should have had judgment upon the verdict in the form of a judgment nunc pro tunc.The verdict had been written upon the complaint and signed by the foreman as we have stated.This fact was not denied and was made plain by the complaint and the jury's indorsement thereon.It could not well be denied because the records of the court showed that at the same term defendants had moved the court to set aside the verdict and to grant a new trial on the ground that error had been committed, and that it was thereupon considered and adjudged by the court that said motion be overruled.This verdict and this record did not estop defendants as by a judgment.There was no record of plaintiff's right as a thing adjudicated for the reason that no judgment had been entered to that effect.

"It is the judgment of the court and not the finding of the jury which binds the parties.The adjudication is not in the verdict, but in the judgment adopted by the court."Lorillard v. Clyde,99 N.Y. 196, 1 N.E. 614;Estate of Holbert, 57 Cal. 257;Schurmeier v. Johnson,10 Minn. 319(Gil. 250).

The quasi record of the verdict and the memorial of the court's subsequent action in passing upon the motion to set aside the verdict, the last, if not the first incontestable as far as it went, and explicable only on the assumption that a verdict had been rendered, did not of themselves establish plaintiff's right of recovery, because a verdict, until it has passed into judgment, is liable to be set aside by an order arresting judgment or granting a new trial, and, in any event, formal judgment must be pronounced upon the verdict.But the record and the quasi record to which we have referred do establish the fact that a verdict for plaintiff has been rendered (Dougherty...