Palmer v. State

• Decision Date: 30 June 1911
• Citation: 56 So. 50,2 Ala.App. 265
• Parties: PALMER v. STATE.
• Court: Alabama Court of Appeals

56 So. 50

2 Ala.App. 265

PALMER v. STATE.

Court of Appeals of Alabama

June 30, 1911

Appeal from Circuit Court, Marion County; C. P. Almon, Judge.

Hez Palmer, tried on an indictment, appeals from the judgment overruling his motion to vacate the entry of judgment of conviction. Reversed and remanded.

See also, 54 So. 272.

A. F. Fite and K. V. Fite, for appellant.

R. C Brickell, Atty. Gen., for the State.

DE GRAFFENRIED, J.

At the August term, 1910, of the circuit court of Marion county appellant was tried upon an indictment charging him with the offense of adultery; upon plea of not guilty, was convicted by the jury and fined the sum of $100 and the court imposed 90 days hard labor as additional punishment for said offense on the appellant. Having during the progress of his trial reserved certain questions of law for the consideration of the Supreme Court, appellant prayed and was granted an appeal. He confessed judgment for the fine and costs in the case with certain sureties, and the judgment was suspended pending the appeal. The court adjourned before the clerk had entered the judgment on the minutes, and about 10 days thereafter the clerk, against the objection of appellant, entered up a judgment in the minutes as of the day on which the verdict was returned, and, as we presume, the judgment actually rendered. Thereupon the appellant made a motion in the court in which the case was tried to vacate and annul the said judgment, alleging that "the said action of the clerk of said court was illegal and without authority of law, that he had no authority to make a judgment entry in said cause or to enter a judgment therein after said final adjournment of the term of court at which this defendant was tried, and the action of the said clerk in entering such judgment upon said minutes is void and the said judgment is void and unenforceable."

The facts in support of the motion were substantially as above stated, and it was also admitted "on the hearing of said motion that on the 23d day of August, 1910, the defendant, Hez Palmer, before the adjournment of the August term, 1910, of the circuit court of Marion county, Ala., made and executed a bond for his appearance pending an appeal from judgment purporting to have been rendered at said August term, 1910, of said court, and that a bill of exceptions was prepared and tendered, but was not signed because the defendant requested the judge not to sign it, no transcript made up, and nothing filed in the Supreme Court in pursuance of such appeal, and that said appeal has not been dismissed. Such appeal bond was made and executed prior to the entry upon the minutes by the clerk of the circuit court of the judgment hereinabove set out." The court overruled the motion, defendant reserved an exception to such ruling of the court, and appeals.

While our statutes covering the subject of amendments of judgments nunc pro tunc do not cover criminal cases, to use the language of Brickell, C.J., in Ex Parte Jones, 61 Ala. 399, "all courts of record have, by the common law, an inherent power to correct clerical errors or omissions which may intervene in making up their records. * * * After the adjournment of the term, if the record or entries or memoranda required by law to be made and kept furnish clear evidence, the misprision may be corrected by them. The power of the court at common law to make such corrections extended alike to civil and criminal cases. Between them there was no distinction. * * * Admitting the argument of the petitioner, that the omission rendered the judgment incomplete, it was the inadvertence of the clerk. The power of the court to correct it is derived from the common law, and is plenary. The means of correction resting in writing, it was the duty of the clerk to make and preserve."

We are not able to agree with appellant in his argument that there was under the allegations of his motion no judgment rendered by the court in this case. The judgment should have followed the verdict as its natural and proper sequence, and the fact that it was not entered on the minutes of the court during the term was, if it was in fact rendered, a mere clerical misprision. Courts do not permit a clerical misprision to defeat the ends of justice, and in the present case the law furnishes to the state and the defendant a complete and convenient remedy for the correction of this omission, viz., a proceeding in the court which rendered the judgment to cure the omission of the clerk for an order requiring the entry of a proper judgment nunc pro tunc. Whenever the bench notes of the judge of a court in which a judgment was actually rendered, but not entered on the minutes by the omission of the clerk during the term, taken in connection with the other entries and memoranda required to be kept, furnish clear evidence of the rendition of a judgment and what the judgment really was, the court will, upon a proper proceeding had for the purpose, order, nunc pro tunc, the entry of such judgment to be made on the minutes, and the judgment, when so entered, relates back to the moment it was actually rendered by the court, and the rights of the parties to the judgment are fixed by it as of that date to the same extent as if it had been actually entered on the minutes during the term at which it was rendered. In the present case the court can upon a proper motion made by the state or defendant render nunc pro tunc the judgment actually rendered in the case, provided the bench notes kept by the judge of the court pending the trial and other entries and memoranda required by law to be made and kept clearly show the actual rendition of a judgment and what the judgment really was, and such judgment, when entered on the minutes pursuant to such order, will have the same effect upon the...