Dwight v. Hazlett

• Decision Date: 09 April 1929
• Docket Number: (No. 6307.)
• Court: West Virginia Supreme Court
• Parties: DWIGHT v. HAZLETT et al.

147 S.E. 877

DWIGHT
v.
HAZLETT et al.

(No. 6307.)

Supreme Court of Appeals of West Virginia.

April 9, 1929.

(Syllabus by the Court.)

Appeal from Circuit Court, Ohio County. Suit by Edgar N. Dwight against Edward Hazlett and others. From an order denying

[147 S.E. 878]

a motion to set aside the decree therein, plaintiff appeals. Reversed, and decree set aside, and cause remanded.

R. A. Blessing and F. G. Musgrave, both of Point Pleasant, and Fred H. Brinkman, of Wheeling, for appellant.

A. V. Wood and John J. Coniff, both of Wheeling, for appellees.

HATCHER, J. The defendants conducted a brokerage business, and the plaintiff was one of their clients. This suit involves a series of transactions between them, from which the plaintiff claims a balance due him of $378,171.77, while the defendants admit owing him only $13.51. A decree dated September 15, 1926, and entered on September 16, 1926, purported to be upon consideration of the argument and the evidence, and directed a recovery of $22,792.83 in favor of the plaintiff. On October 25, 1926, a later day of the same term of the circuit court, a motion was made by counsel theretofore representing plaintiff to set aside the decree of September 16th and grant a reargument and rehearing of the cause. On October 27, 1926, a petition duly verified by plaintiff was filed on his behalf, by new counsel, alleging that the decree of September 16, 1926, was entered "without the knowledge, consent or approval of the plaintiff, and without the matters in issue having been passed upon by the court." The petition prayed that the decree be set aside. Both the motion and the petition were ordered filed and taken under advisement. The defendants appeared to the petition, but did not answer or reply to it. On October 20, 1927, an order was entered which stated that the court, "having fully examined the record herein, " was of opinion that the decree of September 15, 1926, was fair and just, and overruled "the several motions" of plaintiff made on October 27, 1926, to set aside that decree. The plaintiff secured an appeal from the order of October 20, 1927.

After the appeal was perfected in this court, the defendants suggested a diminution of the record, and had certified here by the clerk of the circuit court a memorandum filed with the papers in the cause on October 20, 1927, by the trial judge, and a certificate entered of record by him on March 18, 1929. The memorandum is as follows:

"Dwight v. Hazlett. In Chancery.

"Upon finality of decree of September 16, 1926. Nothing appears to challenge the fairness and good faith of this decree. Counsel for the petitioner assented to it. They had apparent authority to do so and therefore the petitioner is bound by it. Singer, etc., v. Ferrell, 144 Va. 395, 132 S. E. 312 (244)."

The memorandum is not indorsed as filed, and no order was entered filing it. The usual practice is to enter such an order, and it was the duty of the clerk to have indorsed the memorandum as filed. Failure in these respects, however, did not prevent the memorandum from becoming a part of the record. It was placed with the papers herein, and delivered to, and kept on file by, the proper custodian. That constituted a filing. "A paper is said to be filed when it is delivered to the proper officer and by him received to be kept on file. * * * In the absence of statute to that effect, it is not essential to the validity of the filing of a paper in a cause, that the clerk endorse upon such paper the fact of its being filed. The endorsement is nothing more than presumptive evidence of the filing." 8 Ency. PI. & Pr. 923, 927. 8 Standard Ency. of Procedure, 977, 987; 25 C. J. 1124, 1126, 1127; Darnell v. Flynn, 69 W. Va. 146, 149, 71 S. E. 16; Reed v. Todd, 40 S. D. 27, 166 N. W. 167; Golden v. McKim, 45 Nev. 350. 354, 204 P. 602.

The certificate was entered upon the motion of the defendants on March 18, 1929, in the vacation of the trial court. It stated that, after this cause had been submitted for decision, counsel for both parties appeared before the court, represented that "both sides" had agreed that a decree should be entered for $22,793.22, and that they were satisfied that this amount was a fair settlement; and requested the entry of the decree of September 15, 1926. The certificate further explained that the statement in the order of October 20, 1927, that the court had fully examined the record, was not intended to mean that the court had examined the evidence. The certificate proceeds as follows: "The record examined by the Court was the decree of September 15, 1926; the facts presented to me when the consent decree was entered; the filing of the motions aforesaid and the fact that nothing was presented in support of said motions. The Court has not read or considered the evidence in this case."

It is settled that a court has the inherent power to amend its records in accordance with the facts, so that the rolls shall "speak the truth." Mere lapse of time in cases not under section 5, c. 134, Code, does not divest the court of this right "where justice and the truth of the case require it." 7 R. C. L. pp. 1019, 1020; 15 C. J. pp. 975, 976, 977; Frink v. Frink, 43 N. H. 508, 80 Am. Dec. 189, 82 Am. Dec. 172. The propriety of the amendment is within the sound discretion of the judge, at whose direction the record was made. Petition of Tolman, 101 Me. 559, 560, 64 A. 952. That discretion will not ordinarily be reviewed. Guernsey v. Miller, 80 N. Y. 181, 183; Crim v. Kessing, 89 Cal. 478, 26 P. 1074, 23 Am. St. Rep. 491. An amendment may be made upon the suggestion or motion of an interested party or upon the court's own motion. 7 R. C. L. pp. 1021, 1022; 15 C. J. pp. 977, 978. The better practice requires that notice be given to all parties whose interests may be affected by the amendment. State v. Turlock, 76 Mont. 549, 248 P. 169. However,

[147 S.E. 879]

there is substantial authority to the contrary. Cases requiring formal procedure are well illustrated by Weed v. Weed, 25 Conn. 337, and those dispensing with all formality by Balch v...