Light v. Self

• Decision Date: 24 March 1919
• Docket Number: 151
• Parties: LIGHT v. SELF
• Court: Arkansas Supreme Court

211 S.W. 369

138 Ark. 221

LIGHT v. SELF

No. 151

Supreme Court of Arkansas

March 24, 1919

Appeal from Greene Circuit Court, First Division; R. H. Dudley Judge; affirmed.

Affirmed.

D. J Beauchamp, W. E. Hemingway, G. B. Rose, D. H. Cantrell and J F. Loughborough, for appellants.

1. The nunc pro tunc order was valid at least to the extent of setting aside the entry made by the clerk as of January 9. All courts have the inherent power to correct their records so as to make them speak the truth and where the judge knows that the record contains a false or erroneous recital it is within his power and his duty to correct the record and make it speak the truth. It was a matter within his own knowledge. The petition to set aside the order was in apt time and properly overruled. 134 U.S. 136, 141; 84 P. 530; 85 Id. 594; 95 N.C. 471; 45 S.E. 396; 7 Cush. 282-5; 37 Me. 230; 53 Md. 179; 30 Id. 78; 40 Ark. 224; 75 Id. 12. The court was justified in substituting for the order, properly set aside, another order. 75 Ark. 12. Without an adjourning order the term continued from day to day as long as the business required. Kirby's Digest, § 1356. No order is necessary to keep the court in session but one is necessary to end the term. 78 N.W. 602; 21 N.E. 1039; 37 P. 1066; 7 Kan. 386; 110 P. 493; 47 Tex. 90; 1 Wis. 156; 8 A. 822; 53 Barb. 442; 89 P. 267; 113 Id. 401; 97 Mass. 214; 15 C. J. 231 F. 234 B.; 1 Freeman on Judg., § 90; 21 N.E. 1039. If the original entry stands, the term was kept open and the court was in session. Under the law, supra, the court stood adjourned from day to day and our statute fixes the hours within which it could properly convene. During the whole period there was a court in session; the term was open and the action taken was not coram non judice. 21 N.E. 1039; 78 N.W. 602; 97 Mass. 214; 113 P. 401; 110 Id. 493-6; 65 F. 433.

2. Upon a correct state of the record it appears that the county court was in session, but no evidence was taken with respect to the assessments and they were held to be void as the result of holding the organization of the district void, and the judgment should be set aside and cause remanded for further proceedings; the judgment quashing the formation of the district should be set aside, as also the judgment setting aside the correction of the record, and that the formation of the district should be approved and the correction of the record permitted to stand. Cases supra.

Huddleston, Fuhr & Futrell, for appellees.

1. The circuit judge found that the county court did not make the nunc pro tunc order and properly denied the petition to make it. While a court has inherent power to correct its record by nunc pro tunc order to make it speak the truth, it cannot so amend it as to make it speak what it did not speak, but ought to have spoken. 93 Ark. 234; 118 Id. 593; 45 Id. 240; 1 Black on Judg. (2 ed.), § 156; 23 Cyc. 873. Appellants are bound by the judgment of the lower court on the facts. 75 Ark. 12. The court having found against them on the application for nunc pro tunc order the original order of January 9 remains in full force. 82 Ark. 188. An adjournment, unless it is to some day certain, constitutes an adjournment for the term. 203 S.W. 707. The old common law rule that a court's term was considered as of one day and continuously in session until final adjournment has been changed by our statutes. 118 Ark. 416; 203 S.W. 704, etc.; Kirby's Digest, § 1531. The cases cited by appellants are from States following the old common law rule changed in Arkansas.

2. The assessments made here are void. Act No. 338, Acts 1915, § 9. The record shows that certain material, substantive acts were done April 17, when the court had no jurisdiction. The assessors also failed to assess all the land in the district and have duplicated assessments on some of the lands and no proper notice was published. Only county roads were to be improved, not city and town streets. Acts 1915, No. 338, § 7. There was also a material change in the route of the road after the district was created.

MCCULLOCH, C. J. WOOD, J., dissenting. HUMPHREYS, J., concurs in this dissent.

OPINION

MCCULLOCH, C. J.

Appellants are commissioners of a road improvement district, the legal existence of which depends upon the validity of an order entered on the records of the county court of Greene County February 7, 1918, purporting to create the district pursuant to the terms of Act No. 338 of the General Assembly of 1915. Appellees are owners of real property within the territorial boundaries of the district and they assail the validity of the proceedings on the ground that the county court was not in session on the day which the record shows the order was made.

According to the record before us, the county court convened on the first Monday in January, 1918, the day prescribed by law, and remained in session until the 9th day of January, when an order was entered in the following words: "It is ordered by the court that the court adjourn until called by the judge." This record was signed by the presiding judge of the court. There were no further proceedings in the court, and, according to the record, no other session of the court was held until February 7, 1918, when the order was entered creating this road improvement district.

Appellees thereafter appeared in the county court and contested the assessments of benefits, and appealed from the order of the county court approving the assessments, and also presented to the circuit court a petition for certiorari for the purpose of bringing up the records of the county court and quashing the same on the ground that those records disclosed the fact that the county court was not legally in session on the day the proceedings were had creating the improvement district. During the pendency of these proceedings in the circuit court, the county court at a session held on October 26, 1918, entered an order correcting the former entry made on January 9, 1918, concerning the adjournment of the court so as to make that order read as follows: "The court will suspend until tomorrow and remain open until the business of the term is completed."

Appellants filed an answer to the petition and the matter was heard by the court on the pleadings and oral testimony of the county judge and the clerk of the county court, which in substance showed that when business of the county court was suspended on January 9, 1918, there was no specific order made by the judge, but the judge testified that his intention was that the court should remain in session from day to day until the business of the court was completed. The circuit court, on the final hearing, quashed the proceedings on the ground that the county court was not legally in session on the day the order was made creating the district. In other words, the court held that it was a vacation order, which is not authorized by statute.

The contention of learned counsel is that the rule still prevails here, according to what is said to be the common-law rule on the subject, that where a court meets at the proper time and place specified by law the term continues until the beginning of another regular term, which breaks the continuity, or until there has been an affirmative order of the court adjourning without day or to a specified day. Such, indeed, was the common-law rule, which was a part of the fiction that a term of court, however long extended, was but a day, and that all judgments and orders of the court were of that same day. We have expressly repudiated the common-law rule as being inconsistent with our statutes so far as concerns the theory that the term is but one day. Ex parte Baldwin, 118 Ark. 416; State ex rel. v. Canal Construction Co., 134 Ark. 447, 203 S.W. 704.

In Ex parte Baldwin, supra, we said: "The ancient rule was that a term of court was considered as of one day and the court deemed to be continuously in session from beginning of the term until the final adjournment. * * * Our statute manifestly contemplates different days of the term of court, but it does not take account of parts of days, and even if the court announces an adjournment it has the power to reconvene on the same day for the purpose of transacting business."

In State ex rel. v. The Canal Construction Co., supra, we said: "Under our statutes certain times and places are fixed by law to hold court. * * * When the court adjourned to a day certain all persons interested had the right to remain away until the day fixed by the court to convene again, and the judge could not before that day arrived convene the court and proceed with the dispatch of the cases and other matters pending therein. The fact that by a statute in this State courts must be held at fixed times and places raises the implication that courts cannot assume a vagrant character and hold their sessions at other times or places than those provided by law."

The county court is a court of record and our statute regulating the procedure in such courts provides for what are termed adjourned sessions of court, and also for special terms of court. The statute authorizing adjourned sessions reads as follows:

"Special adjourned sessions of any court may be held in continuation of the regular term, upon its being so ordered by the court or judge in term time, and entered by the clerk on the record of the court." Kirby's Digest, section 1531.

This statute is manifestly in conflict with the common-law rule concerning the continuity of a term of court, and necessarily changes the common-law rule, for, if that rule still prevails making terms of court continue from day to day without an order of court, then it is surplusage for the lawmakers to require an adjourned session in continuation of the term to...