McDaniel Bros. Const. Co. v. Jordy

• Decision Date: 21 February 1966
• Docket Number: No. 43786,43786
• Parties: McDANIEL BROTHERS CONSTRUCTION COMPANY, Inc. v. Walter S. JORDY, d. b. a. Jordy Associates.
• Court: Mississippi Supreme Court

Page 501

183 So.2d 501

254 Miss. 839

McDANIEL BROTHERS CONSTRUCTION COMPANY, Inc. v. Walter S. JORDY, d. b. a. Jordy Associates.

No. 43786.

Supreme Court of Mississippi.

Feb. 21, 1966.

Pat H. Scanlon, Young & Young, Jackson, for appellant.

William E. Suddath, Jr., Watkins & Eager, Jackson, for appellee.

RODGERS, Justice:

This case came to this Court from the Circuit Court of the First Judicial District of Hinds County, Mississippi, where a judgment was originally entered in favor of Walter S. Jordy in the sum of $3,000 on August 12, 1964. The appellee filed a motion to correct judgment on August 13, 1964, but this motion was not acted upon during the regular July term which began July 6, 1964, and ended August 15, 1964. There was no order entered extending the term of court. The only order appearing on the minutes is dated August 14th and is in the following words: 'Ordered and adjudged that the Court do now adjourn until 9:00 A.M. Monday.' Thereafter, on August 19, 1964, the circuit court entered an order setting aside the previous judgment in the instant case and entered a final judgment for $6,004 in favor of the appellee. The appellant, McDaniel Construction Company, Inc., has appealed from this judgment. After appellant's brief was filed on December 15, 1965, and it became known that they contended that the final judgment for $6,004 was entered in vacation, the appellee, Walter S. Jordy, filed a motion in this Court on January 7, 1966, requesting this Court to permit him to supplement the record on appeal to show an attached order entered by the trial court on December 30, 1965. This order attempted to amend and correct the minutes of the trial court as of Friday, August 14, 1964. The appellee filed an answer to the appellant's motion to supplement the record and asserted that no hearing was held by the trial court to determine the issue as to whether or not the failure to enter an order extending the July 1964 term was a clerical error. The appellee filed a response to appellant's answer to its motion, stating that the attorney for appellant was notified by telephone and requested to appear at 1:30 P.M., December 30, 1965; that he did appear and examined a carbon copy of the order, but offered no rebuttal except to say that the court lacked the power to correct its minutes under the circumstances.

In the outset, therefore, it is apparent we must first determine the issue presented by the motion to supplement the record of the trial court.

Mississippi Code Annotated section 1401 (1956) provides that the July term of the Circuit Court of the First Judicial District of Hinds County begins on the First Monday of July and runs for thirty-six days. The July 1964 term of that court began July 6, 1964, and ended August 15, 1964.

Mississippi Code Annotated section 1647 (1956) provides that the term of circuit court may be extended by the trial judge. The pertinent part of this Code section is as follows:

'And in all cases where, in the judgment of any judge or chancellor, the business of any circuit or chancery court may for any cause make it advantageous, or proper, so to do, such judge or chancellor may continue any term of court then in session by an order entered on the minutes of the court for such time as such judge or chancellor may determine. * * *'

This Court has heretofore considered several cases in which orders were entered by the trial judge after the regular term of court had expired, and a majority of the Members of this Court are of the opinion that the issue has been settled, adversely to the claim of appellee.

We upheld an order of the Circuit Court of Wayne County in the case of Perry v. State, 154 Miss. 459, 122 So. 744 (1929). The order entered in that case was in the following language:

'Tuesday January 22nd, 1929, It now appearing unto the Honorable J. D. Fatheree, Judge of the circuit court for the 10th Judicial District, of Mississippi, the business of the January 1929, term of circuit court of Wayne County, Mississippi, now being held because of the heavy docket of said court makes it advantageous and proper to continue said term for one week longer than the regular term, that is to say said regular term in the judgment of the said J. D. Fatheree, for the above reasons should be and is hereby ordered extended and continued for one week from the time fixed by law, for the expiration of the regular term, the clerk is hereby ordered to spread this order on the Minutes of the court, and the officers are hereby directed to draw jurors for said week, and summons such jurors for service January 28th, at nine o'clock A.M.' 154 Miss. at 463, 122 So. at 745.

The order was spread upon the minutes of the court during the regular term, and on appeal this Court said:

'The order of January 22d, which was a day of the regular term fixed by law, was made and entered under the authority of the last clause of section 988 Code of 1906. * * *' 154 Miss. at 464, 122 So. at 745.

The Court then said:

'An extended term of court, therefore, is not a special term; it becomes simply a part of the regular term fixed by law. An extended term of court must be for a definite time; the statute so provides. The extension here involved was for a definite time--one week. * * *' (Emphasis supplied.) 154 Miss. at 465, 122 So. at 745.

In the case of Watson v. State, 166 Miss. 194, 146 So. 122 (1933), the trial judge entered an order at a special term of court stating that the court was then in session and the business of the court required that it be continued; that it was advantageous and proper to extend the court term into a third week in order to dispose of the volume of business. On appeal to this Court, it was contended that the statutory law (Sec. 732, Miss. Code 1930) authorizing an extended term of court as an extension of a regular term of court had no application to a special term of court called for a stated term. This Court held, however, that a special term of court could be extended as well as a regular term. On the other hand, this Court pointed out:

'In support of the ground of objection that there were no signed minutes of the special term showing an order extending said term, and therefore the said term expired at midnight, Saturday, March 5, 1932, the appellant offered as a witness the circuit clerk, the custodian of the minutes of the court, and by him identified the minute book, and particularly page 239 thereof, which he identified as the purported minutes of the court for Thursday, March 3, 1932, and as containing an order of the court extending the special term of court for one week. The appellant offered in evidence pages 224 to 243, inclusive, of this minute book, which purported to be the entire minutes of the special term of two weeks, including the minutes of Thursday, March 3, Friday, March 4, and Saturday, March 5, 1932, and the clerk of the court then offered to testify that the minutes of these last-mentioned three days were not signed by the judge. An objection was interposed to this testimony, on the ground that the minutes were the best evidence of the fact. This objection was sustained, and thereupon the appellant again offered and read into the record page 243 of the minutes containing the following recitation: 'It is now ordered that court adjourn until Monday morning, March 7th, 1932, at nine o'clock.' Under this recitation there was a blank space under which appeared the words 'Circuit Judge,' but no signature of the judge appeared in the space above these words, or on this page.' 166 Miss. at 208-209, 146 So. at 125-126.

The Court quoted from Mississippi Code 1930 section 750, and said:

'The provision of this section that 'on the last day of the term the minutes shall be drawn up, read, and signed * * * before the adjournment of the court' is mandatory, and requires that the minutes must be drawn up and signed before the expiration of the time fixed by law, or by the order calling a special term shall have expired. In view of the mandatory provision of this statute, there is no right or authority in a presiding judge to sign the minutes of his court after the term has expired by operation of law and is in vacation.' 166 Miss. at 210, 146 So. at 126.

Following the above-quotation, it was said:

'A writing or entry on a book provided for recording the minutes of the proceedings of the courts of this state does not become a part of the court's minutes until such tentative minutes are read and signed by the presiding judge. The only power of a circuit judge or chancellor to extend a term of court, regular or special, is found in section 732, Code 1930, which authorizes the extension of any term of court then in session, by an order entered on the minutes of the court. This necessarily means that the order extending a term of court must be entered on the minutes while the court is still in session, that is, upon minutes signed by the judge before the expiration of the term proposed to be extended. So, in the case at bar, if, in fact, no order extending the term of court was entered on minutes which were signed by the presiding judge before the expiration of the term, as fixed by the original order calling the term, the attempted extension was ineffective, and the term of court ended at midnight of Saturday, March 5, 1932, and the trial of appellant during the following week was a nullity.' (Emphasis supplied.) 166 Miss. at 211, 146 So. at 126-127.

It is true that Mississippi Code Annotated section 1670 (1956) permits the correction of a mistake, miscalculation or misrecital of any sum of money, quantity of any thing, or of any names in the minutes of the court where there shall be among the records of the proceedings in a suit, any verdict, bond, bill, note, or other writing of the like nature or kind, or docket or other memoranda by the judge or chancellor, whereby such judgment or decree may be safely amended, the judge may correct the record. But, we are...