Light v. Self

• Decision Date: 14 July 1919
• Docket Number: (No. 102.)
• Parties: LIGHT et al. v. SELF et al.
• Court: Arkansas Supreme Court

Page 746

214 S.W. 746

LIGHT et al. v. SELF et al.

(No. 102.)

Supreme Court of Arkansas.

July 14, 1919.

Dissenting opinion.

For majority opinion, see 211 S. W. 369.

WOOD, J.

The county court of Greene county convened on Monday, January 7, 1918, the day fixed by law for the commencement of one of the regular terms of that court. Section 1356, Kirby's Digest.

Petitions for the creation of road improvement district No. 1 of Greene county, Ark., were pending before the court. The court, as shown by an order entered on its record, consolidated and treated these petitions as one, and fixed January 18, 1918, as the day for the hearing of the petition. On January 9, 1918, when the business of that day was closed, the judge of the court "walked off the bench and made no order at all," adjourning court. "It was the intention that the court should remain open until the work was completed." There was a record entry as of January 9, 1918, as follows: "It is ordered by the court that court adjourn until called by the judge." The county court afterwards entered a nunc pro tunc order so as to make the adjourning order of January 9th read as follows: "This court will suspend until tomorrow, and remain open until the business of this term be completed."

It does not appear that there were any formal orders opening and adjourning the court from day to day from January 9th until January 18th, the day set for hearing the petition for the creation of road improvement district No. 1 of Greene county, but there is in the bill of exceptions an order of the county court entered of record as of January 18, 1918, which recites as follows:

"Court met pursuant to adjournment. * * * On this day is presented to the court the petition of Jason L. Light et al.; also the petition of J. W. Seay et al.; also the petition of the Security Bank & Trust Company et al.; and the petition of J. A. Newberry et al. — all praying for the establishment of a road improvement district," etc. "Honorable Jeff Bratton asks that the hearing of the petitions be continued until the 1st day of February, 1918, which was by the court granted, and the cause is continued until the 1st day of February, 1918."

There is also an order showing that the court met on the 1st day of February, 1918, "pursuant to adjournment," and the hearing of the cause was continued on that day until the 7th day of February, 1918, on which day the county court entered an order establishing road improvement district No. 1 of Greene county.

The undisputed testimony of the clerk and his deputy, one of whom entered the purported adjourning order of January 9th, supra, shows that they did not know whether the court actually made the order or not. The testimony of the judge himself shows that no such order was made; and, indeed, the undisputed testimony of the judge shows that no adjourning order of any kind was made by the court on the 9th day of January, 1918.

The rule, as established by our own and the authorities generally, is that courts of record have power by an order nunc pro tunc to make their records reflect the facts as they actually took place; in other words, to make their records speak the truth. But they cannot, by nunc pro tunc orders, cause their records to show what was not actually done. "A nunc pro tunc order does not create, but only speaks, what has been done." Cox v. Gress, 51 Ark. 231, 11 S. W. 416; Gregory v. Bartlett, 55 Ark. 30, 17 S. W. 344; Lourance v. Lankford, 106 Ark. 470, 153 S. W. 592, Ann. Cas. 1915A, 520; Citizens' Bank of Mammoth Springs v. Commercial Bank, 118 Ark. 497, 177 S. W. 21.

The county court, under the undisputed evidence, properly set aside the order entered by the clerk, to wit, "That court adjourned until called by the judge." But the court had no power to substitute for this order one which the court intended to, but did not, in fact make.

Therefore the facts of this case, as shown by the oral testimony and the record entries of the county court as set forth in the bill of exceptions, are: That the county court of Greene county, by an order entered on its record, set for hearing January 18, 1918, certain petitions that were pending before the court praying for the establishment of road improvement district No. 1 of Greene county, Ark.; that after making the above order, on the 9th day of January, 1918, the same being a day of the regular January term, the judge left the bench without making a formal order adjourning court; that on Friday, January 18, 1918, the court "met pursuant to adjournment," and the cause presented by the petitions for the creation of road improvement district No. 1 of Greene county was called, and, on motion of the attorney for the remonstrants, was continued until February 1, 1918; that on the 1st day of February, 1918, the hearing of the cause was continued until the 7th day of February, 1918; that on February 7, 1918, the county court of Greene county convened pursuant to adjournment and entered a judgment establishing the district above named. On the 30th day of September, 1918, the appellees herein filed in the circuit court of Greene county a petition for writ of certiorari, alleging, in substance, that the county court was not legally in session, and therefore had no jurisdiction to make the order establishing road improvement district No. 1 of Greene county. The appellants responded, denying the allegations of the petition. At the hearing the facts as above set forth were developed, and the court entered the judgment quashing and setting aside the judgment of the county court establishing road improvement district No. 1 of Greene county.

First. I have been thus careful to state the facts in detail for the reason that in the opinion of the majority of the court no notice is taken of the fact that prior to January 9, 1918, the county court had set January 18, 1918, as the day for the hearing of the cause pending on the petitions for the creation of road improvement district No. 1 of Greene county. An accurate statement of the facts is a prerequisite to a proper application of the law. Consideration of the above important fact, in my opinion, is essential to a correct decision of this cause, for it shows conclusively that the business of the January term of the Greene county court was not completed at the close of the 9th of January, when the judge left the bench without formally adjourning the court. The fact that the hearing of the cause for the creation of road improvement district No. 1 was set for January 18th shows that the business before the court required that the court meet on that day. This fact also demonstrates unmistakably, and the county judge himself testified, that it was the intention of the court when the judge left the bench on the 9th day of January, 1918, not by that act to finally end the term, but it was the intention that the court should again be in session during that term, at least on the 18th day of January succeeding.

If the judge of the county court, through inadvertence, or because he may have considered it unnecessary, failed to enter a formal order adjourning the court on that day to the next day, and from day to day until January 18, 1918, the day previously designated for the hearing of the cause pending before the court, or did not adjourn from the 9th until the 18th, did such failure cause the term of the court to lapse? That is the precise question first presented by the undisputed facts of this record. The county judge in this connection testified:

"Q. On the 9th day of January, 1918, you had in your court for hearing this road improvement district No. 1 to take place on the 18th day of January, didn't you? A. I don't know whether it was on the 9th or not, but it was the 18th that it was to come up again, I know.

"Q. And I believe you stated that you were pretty positive that when the work on the day of the 9th, if that was the proper day, was completed, you simply got up and went out without making any order for adjournment? A. That is the best of my memory."

The record entry, as before stated, shows that the court had entered an order setting the 18th day of January, 1918, for hearing the petitions for the creation of road improvement district No. 1 of Greene county. This action of the court in setting the cause, and nonaction in merely failing to announce an adjournment or recess in the regular session from the 9th to the 18th day of January, as disclosed by the testimony, taken together, was but tantamount to an adjournment or recess of such regular session of the court from the 9th to the 18th of January, and on the latter date there was an order entered of record continuing the cause until the 1st of February, 1918, which in effect was an adjournment of the court for the regular term to a special adjourned term to be held on the 1st of February, 1918.

In Ex parte Baldwin the circuit court of Sevier county was in regular session of the January term, 1915, and on the 5th day of February, 1915, there was a record entry as follows: "Ordered that court adjourn until ____;" and immediately following was the entry: "Ordered that court adjourn until Thursday morning, March 4, 1915." Intervening these dates there was a regular term of the circuit court in another county. The question was whether or not the January term of court lapsed. We held that the record showed an adjournment on the 5th day of February to the 4th of March, 1915, and that inasmuch as a definite day was fixed in the adjourning order the intervening regular term in another county did not cause the regular January term of the Sevier circuit court to lapse. Although the first adjourning order left the date blank, the second adjourning order made on the same day supplied the date, and we treated the record as showing an order of adjournment made on the 5th day of February until March 4, 1915. In that case we said:

"Our statute manifestly contemplates different days of the term of court, but it...