Childress v. Carley

• Decision Date: 27 April 1908
• Docket Number: 13,131
• Citation: 46 So. 164,92 Miss. 571
• Court: Mississippi Supreme Court
• Parties: GEORGE W. CHILDRESS v. GEORGE S. CARLEY ET AL

46 So. 164

92 Miss. 571

GEORGE W. CHILDRESS v. GEORGE S. CARLEY ET AL

No. 13,131

Supreme Court of Mississippi

April 27, 1908

FROM the chancery court of Harrison county, HON. THADDEUS A. WOOD Chancellor.

Childress appellant, was licensed to sell intoxicants by the municipal authorities of Gulfport, and Carley and others, appellees appealed to the circuit court. Late on the afternoon on the last day of the term the case was called in the circuit court and tried, and the court announced that the appeal would be sustained and license revoked. Accordingly an order to that effect was drawn up by counsel, but was not entered on the minutes before the judge adjourned the court. The judge signed his name on a blank page before adjourning (it being late Saturday evening), and on the following Monday the order was inserted by the clerk above the signature of the judge. Childress then filed his bill in chancery, setting up the foregoing facts, and asking that the order thus entered be declared null and void, and that the parties (appellees on this appeal) be enjoined from interfering with the license granted appellant. The court below dissolved the injunction on motion, and complainant appealed to the supreme court.

Affirmed.

W. R. Harper and W. G. Evans, for appellant.

This court can not afford to tolerate any interference with the absolute verity of court records. After the adjournment of a court there is absolutely no authority in any one to alter, change or amend the minutes except as provided by statute. As to the necessity of the entry of orders and judgments and the insufficiency of notes or memoranda, see Steen v. Steen, 25 Miss. 513; Gilbert v. McCann, 38 Miss. 469; Verney v. Boyett, 1 How. (Miss.), 39. Code 1906, § 1007, requires not only that the minutes shall be drawn up, but that they shall also be read by the judge and signed on the last day of the term.

Hanan Gardner and J. A. Ballinger, for appellees.

The validity of the judgment appealed from, which was rendered in term time, is not affected by the fact that the entry thereof above the judge's signature, which was a mere ministerial duty of the clerk, was not made until after adjournment. 23 Cyc., 839. As between the parties, it is held by some authorities that a judgment which was duly rendered is valid and effective though not entered at all. 23 Cyc., 836.

The judgments and records of courts import absolute verity on their face. Jones v. Williams, 62 Miss. 183.

The appellant had no actual notice of the rendition of the judgment and is estopped to claim equitable ruling against its enforcement. He had his remedy by appeal.

MAYES, J. WHITFIELD, C. J., dissenting.

OPINION

MAYES, J.

There is no charge of fraud in the bill of complaint filed in this cause, nor is there any contention that the judgment entered on the minutes of the court was a different judgment from the one which the court ordered the clerk to place there. The real question in the case, and the only question, arises out of the fact that the judge finally adjourned his court on Saturday night, the 15th day of June, 1907, after the rendition of the judgment in question, but before the judgment was actually put on the minutes by the clerk. The object of the bill filed is to show that the judgment was not actually entered at the time of its rendition, nor was it on the minutes of the court at the time the judge signed the minutes finally adjourning the court. It is offered to be shown that the judge signed the minutes, leaving blank pages in front of his signature to be filled in with this judgment, and adjourned court before the actual entry of the judgment, which was subsequently placed on the minutes by the clerk, on the following Monday, about 9 or 10 o'clock, above the signature of the judge made on Saturday. No irregularity is shown on the minutes of the court; but it is sought to make proof of this by the clerk, his deputy, and the sheriff. The minutes are in all respects regular, and, as far as anything is shown by them, the judgment was entered, as required by statute, before the final adjournment of the court. It is claimed that the entry of this judgment after the adjournment of the court is a nullity.

The question in this case is not different from the question involved in the case of Jones v. Williams, 62 Miss. 183. In the Jones case, decided under Code 1880, § 2282, of which Code 1906, § 1007, is an almost identical copy, proof was offered to contradict the record of the court as to the day of adjournment, and the court said: "The settled doctrine seems to be that evidence to vary a date shown by the record is not permissible. Judicial records, required by law to be kept, are said to import unerring verity, and to be conclusive evidence against all the world as to their existence, date, and legal consequences. The minutes of the proceedings of the circuit court are required to be entered by the clerk, read in open court, and signed by the judge, and on the last day of the term the minutes shall be drawn up, read, and signed on the same day, or before the adjournment of the court. These minutes are a record of the most solemn character, and entitled to the highest degree of verity ever attached to records." In the case we are now considering it is sought to contradict the minutes of the court by proof that a judgment, shown by the minutes to have been rendered and entered as required by law on the records of the court before final judgment, was not in fact so entered, but in truth was not entered until two days after final adjournment of the court. The case of Jones v. Williams is decisive of this case; but we are not without other apt and strong authority. Any contrary holding would bring about immeasurable evil and result in the destruction of the stability of all judicial records.

In Wigmore on Evidence, p. 3457, § 2450, dealing with this very question, in speaking of judicial records, it is said "The record being the sole embodiment of the judicial proceedings, no other materials or utterances, oral or written, can be set up in competition with it. In other words, but less correctly, the record is conclusive. This is so, even though the record has not been made up; for herein appears the compulsory nature of the rule. It must be made up, and, if it is not, then in legal theory there is no judgment or legal proceedings; and it is always in the power of litigating parties to prevent hardship by compelling the proper officer to make up the record." We quote the above from Wigmore with approval. The law requires the record to be complete, and when it so purports to be on its face in law it is complete, and it is not subject to impeachment. It is within...