State ex rel. Eggers v. Branaman, 26216.

• Decision Date: 21 December 1932
• Docket Number: No. 26216.,26216.
• Citation: 204 Ind. 238,183 N.E. 653
• Parties: STATE ex rel. EGGERS v. BRANAMAN, Circuit Judge, et al.
• Court: Indiana Supreme Court

204 Ind. 238

183 N.E. 653

STATE ex rel. EGGERS

v.BRANAMAN, Circuit Judge, et al.

No. 26216.

Supreme Court of Indiana.

Dec. 21, 1932.

Original action by the State of Indiana, on the relation of Anna Eggers, asking that a writ of mandate issue against John C. Branaman, as Judge of the Lawrence Circuit Court, and another, requiring the Judge to correct a certain record of the Lawrence Circuit Court in the case of State of Indiana against Anna Eggers, wherein an alternative writ issued, to which both a demurrer and a response were filed by respondent.

Respondent's demurrer overruled, and alternative writ, as modified, made absolute.Eli B. Stephenson, of Bedford, for relatrix.

R. L. Mellen and Chester A. Davis, both of Bedford, for respondents.

TREANOR, C. J.

This is an original action in the name of the state of Indiana, on the relation of Anna Eggers against John C. Branaman, as judge of the Lawrence circuit court, the relatrix asking that a writ of mandamus issue to require the correction of a certain record of the Lawrence circuit court in the case of State of Indiana v. Anna Eggers, No. 6532.

An alternative writ issued to which both a demurrer and a response were filed.

We think we may consider that the following facts are established by the pleadings or were admitted in oral argument:

At the November term, 1931, of the Lawrence circuit court, the relatrix was tried on the charge of petit larceny; the alleged offense consisting of the taking of a deed from the office of the clerk of the Lawrence circuit court. While the jury was deliberating, the regular judge, the Honorable John C. Branaman, vacated the bench after an arrangement had been made that one William Brooks, a reputable practicing attorney at the Lawrence county bar, should receive the verdict when and if a verdict should be returned by the jury before the sitting of the respondent, as judge of the Lawrence circuit court, at a day subsequent thereto. We shall assume that the attorney of the relatrix, in her presence, agreed to the foregoing. William Brooks did none of the acts required to qualify as a special judge. The jury returned a verdict of guilty, and Mr. Brooks received the verdict and discharged the jury. The record of the proceedings recites that the verdict “was received in open court,” and does not reveal that the regular judge had vacated the bench and that Mr. Brooks received the verdict and discharged the jury. Later judgment was pronounced by the regular judge. No objection was made by the relatrix to Mr. Brooks receiving the verdict and discharging the jury at the time the verdict was received nor at the time judgment was pronounced and sentence imposed. Further, no steps were taken to prepare for an appeal; and, at the time this original action was filed, the time fixed by law for the making of an appeal had passed.

Subsequently to the passing of judgment on the relatrix in the cause above referred to, a disbarment proceeding was instituted against the relatrix, and in connection with such proceeding one David F. Long, attorney for relatrix, prepared a motion to file in open court before the respondent, for the purpose of causing the record in the case of State of Indiana v. Eggers to show that Mr. Brooks, an attorney, received the verdict and discharged the jury. The evident theory of relatrix was that the correction of the record would result in the record's showing on its face that the verdict was a nullity and that the judgment pronounced thereon was void; and, consequently, that the judgment would then be subject to collateral attack in the disbarment proceeding. There is apparent conflict between the answer of respondent and the complaint and supporting affidavits of relatrix as to just what happened when Mr. Long presented his motion for a nunc pro tunc entry in open court. According to the version of relatrix, the motion “was offered to be filed in open court before the Honorable John C. Branaman,” and he refused to consider the motion for the reason that the case of State v. Eggers was closed. Respondent's answer states:

“That this respondent did not deny the relatrix or his (her) attorney, or any other person on her behalf, the right to file a petition for a nunc pro tunc entry or any other petition or paper; that respondent did not refuse to permit David Long or relatrix or any one for her to file any petition or paper, and did not refuse to docket or recognize any such petition or paper. ***

“That no petition or paper of any kind was ever filed in the clerk's office of said Court nor with this respondent by relatrix or any one in her behalf asking that the record of said cause be corrected by adding thereto the statement that William F. Brooks received said verdict.”

Some time after the above proceedings were had, relatrix brought a habeas corpus proceeding to obtain her release from custody, which proceeding is now pending; and she now seeks a writ of mandamus from this court to compel the respondent to correct the record in order to use same as evidence in the pending habeas corpus proceeding for the purpose of establishing that she is being held in custody under a void judgment. Relatrix sets out in her petition the circumstances under which the verdict was received in the case of State of Indiana v. Eggers, and alleges “that due demand was made before bringing this action (i. e. the original action for writ of mandamus) upon said Judge and Clerk, to correct the record relating to the facts herein set out.” There is no allegation that any written request was filed or offered for filing at this time.

To be entitled to the relief sought, the relatrix must show that the respondent is under a duty “enjoined by law” to correct the record; that the relatrix has a right to have the record corrected; that the act of correcting does not involve the exercise of judicial discretion; that the relief sought by the writ will accomplish the purpose for which it is sought; and, finally, that the relatrix has taken proper steps to “put the trial court in default before asking relief from this Court.”

A party to a judicial proceeding is entitled as a matter of right to have the record correspond to the facts and obviously has a right that the presiding judge correct an inaccurate record whenever an inaccuracy materially prejudices his interests. It is the recognized rule of this state that a court has the inherent power to correct its own records on its own motion and is, of course, under a solemn duty to do so. The first question to decide in the instant case is whether the record accords with the facts. The record recites that the verdict was received “in open court,” and on its face must be understood to record that the regular judge, the Honorable John C. Branaman, the respondent, was sitting as judge. In fact, Mr. Brooks was sitting, and had not qualified as a special judge. The record does not state the facts.

The pleadings in the instant action reveal that relatrix cannot appeal from the judgment in the case of State v. Eggers for the reason that no questions were saved and the time for appeal has passed. Consequently, if the result of changing the record would be merely to reveal error which could be assigned as grounds for reversal on appeal, it would be useless for this court to grant the relief sought. The petition of the relatrix, however, shows that she is seeking release from imprisonment by a habeas corpus proceeding on the theory that the judgment in State v. Eggers is void; and she further shows that she cannot take advantage of the alleged nullity of such judgment except by securing a change in the record to make it accord with the facts. As the record in the case of State v. Eggers now stands, the relatrix is in custody under a process issued on a final judgment by a court of competent jurisdiction, and the record is regular in form and, as against a collateral attack in the habeas corpus proceeding, imports absolute verity. If the corrected record will show on its face that the judgment under which relatrix is being held is void, then relatrix would be entitled to a...