Ralls v. Sharp's Adm'R.

• Decision Date: 25 November 1910
• Citation: 140 Ky. 744
• Parties: Ralls, et al. v. Sharp's Adm'r, et al.
• Court: Kentucky Court of Appeals

140 Ky. 744

Ralls, et al. v. Sharp's Adm'r, et al.

Court of Appeals of Kentucky.

Decided November 25, 1910.

Appeal from Bath Circuit Court.

C. W. GOODPASTUR and LEWIS APPERSON, for Appellants.

JOHN P. McCARTNEY, for Appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Reversing.

This is a graded school case. The appellants, who were plaintiffs below, brought this action against the appellees, trustees of the Sharpsburg graded common school, and the sheriff of Bath county, to enjoin the collection of the graded school tax. Upon a submission of the case the petition was dismissed. A reversal is asked for several reasons that will be noticed in the opinion.

The first error assigned is that the order directing the graded school election to be held is void because no order was entered on the order book of the Bath county court showing that the petition required by the statute had been filed. Section 4464 of the Kentucky Statutes provides in part that:

"It shall be the duty of the county judge in each county of this Commonwealth, upon a written petition signed by at least ten legal voters, who are taxpayers in the justice's district, town or city of the fifth or sixth class in his county to make an order on his order book, at the next regular term of his court after he received said petition, fixing the boundary of any proposed graded common school district * * * Provided, That the proposition to establish any graded common school district and school, as provided for in this section, is approved in writing on the petition to the county judge by a majority of the trustees of any common school district, included wholly or partly within the boundary of said proposed graded common school district, and approved in writing on said petition by the county superintendent of common schools; that no point on the boundary of any proposed graded common school district be more than two and one-half miles from the site of its proposed schoolhouse, and that the location and site of said school-house in said district are set out with exactness in said petition to the county judge." * * *

The records of the county court, including the petition show the following facts: The petition when presented was endorsed "Filed December 11, 1905. J. T. Peters, Clerk," and on the minute book of the Bath county court this entry made on the same date "Common Graded School, Sharpsburg District. Petition filed for graded school." On the printed docket book of the Bath county court there was also made on December 11, 1905, this entry: "Ratcliff, Nelson and Atkinson and others, petition for graded school, Sharpsburg District. Petition filed."

There was a regular order book for the court, but no entry in reference to the graded school was made on this book; nor were the minute book or docket book containing the entries before mentioned signed by the county judge.

Upon this condition of the record, it is insisted that as there is no order on the order book of the court, or order on any record book of the court signed by the county judge showing that the petition was filed, therefore there is nothing to legally show that any petition calling for the election was ever filed in the court, the argument being that the county court is a court of record and can speak only by its records as they appear upon the order book of the court, which has been signed by the county judge.

The question now being considered was before this court in Webb v. Smith, 99 Ky., 11, and it was there said:

"It was insisted below, as we think properly, that the petition should have been presented to the county judge in term time and made a part of the record of the court. The statute provides that he shall not make the order calling the election until the next regular term after he receives the petition showing the necessity of having an entry of some description showing when the petition was received by him. The county court is a court of record, and the records must show that proper steps have been taken to comply with the law." * * *

In Wilson v. Hines, 99 Ky. 221, after approving the ruling in Webb v. Smith, it was said:

"In our opinion it was intended that the petition should be received in open court and there made a matter of record by the proper order entered on the order book showing that it had been received and filed, and the purpose of it." * * *

This was a local option case, but section 2554 of the Kentucky Statutes providing for the filing of a petition to have a local option election called is worded the same as the statute in reference to the petition to call a graded school election.

Again, in Smith v. Patton, 103 Ky., 444, the ruling in Webb v. Smith, and Wilson v. Hines, was referred to and approved.

In view of these authorities, we are of the opinion that the petition requesting the county judge to call a graded school election should be presented in open court and entered upon the order book of the county court as of the day it is filed. This does not mean that the entire petition must be entered on the order book, but enough should be entered to show that a petition was filed and the purpose of it. The fact that the petition was endorsed "Filed" and that an entry of its filing was made upon the Docket Book and the minute book of the court, do not meet the requirements of the statute as construed in the cases we have cited. It is doubtless true that the docket book and the minute book are record books of the county court, but they are not the record books in which are recorded the orders of that court. Each county court has an order book and in this book the acts and doings of the court are preserved and authenticated by the signature of the presiding judge. When we speak of the orders of the court, we have reference to the order book, and not the docket book or the minute book of the court. Neither the minute book nor the docket book are required to be, nor are they often signed by the judge of the court. It was not designed that the permanent orders of the court should be recorded or preserved in a docket book or a minute book. These books are merely for the purpose of keeping a memoranda or note of the business that is to come before the court or that has been transacted by it. The matter written in these books is not entitled to the weight or the verity of orders recorded in the order book of the court. In the early case of Commonwealth v. Chambers, 1 J. J. Mar., 108, in speaking of the minute book of the court and its office, it was said:

"We regard it as a book, used by the clerk, in which, to make memoranda of the proceedings of the court, while the court is progressing with business. The business transacted by the court, is stated in the minute book, in short notes, and these are written out in the order book, on record paper, at full length, as the clerk has time. When so written out, and signed by the judge, they constitute the proper records of the court, and until signed by the judge, they cannot with propriety be considered the record. We know, that the judges of the circuit courts, sometimes by signing the minutes, give, or attempt to give, the minute book, the force of a record; but this is a practice, which we think, ought not to be tolerated. The minutes are, generally, too imperfect, to show clearly and fully, what the court has decided and done."

In Johnson v. Commonwealth, 80 Ky. 377, the court in approving what was written on the subject of minutes in the Chambers case, further said that the signature of the judge to the minute book did not give to the entries therein the force and effect of regularly entered and signed orders on the order book.

In Fristoe v. Gillen, 26 L. R. 149, the court said, in speaking of an entry on the minute book showing that a judgment had been rendered in a case, naming it:

"This minute or order referred to was not a complete order and of binding effect, until spread upon the order book and approved and signed by the court on the first day of the succeeding term."

But, notwithstanding the conclusion we have reached, as to the insufficiency of the record in failing to show that the petition was filed, the question arises, can the county court of Bath county at any time after the term at which the petition was endorsed "Filed" and noted on the minute book and docket book, make a nunc pro tunc entry upon the order book of the court that will be a compliance with the statute? The general rule is, although there are exceptions to it, that when an order or direction of court had been omitted from the record by the inadvertence or mistake of the clerk or judge, and there is record evidence showing that all the steps necessary to have the omitted order or direction entered were duly made and taken, and by a reference to this record the court without any other information or evidence can know what judgment or order was intended to be entered, it may from this record evidence enter as of the date when it should have been entered what is called a nunc pro tunc order or such order as would have been entered except for the omission. In other words, the court may do that which except for inadvertence or mistake would have been done. In making such entry the court is only correcting its own omission or mistake, or the omission or mistake of its clerk. It is not the making of a new order or direction, but the new entry of an old order or direction. It is merely placing the parties to the record in the condition the court intended they should be. In Montgomery v. Viers, 130 Ky., 694, the question of the power and authority to enter a nunc pro tunc judgment was fully considered, and in the course of the opinion the court said:

"Nor is there a limitation upon the time when it may be done, unless such be found in the modern statutes of limitations; one instance being recorded where such an entry was made 23 years after the judgment was rendered. * * * For that reason, and to that end, in pursuance of the...