State ex rel. Jackson v. Owen Circuit Court
| Decision Date | 17 July 1974 |
| Docket Number | No. 1--174A11,1--174A11 |
| Citation | 314 N.E.2d 73,160 Ind.App. 685 |
| Parties | STATE of Indiana on the relation of Melvin L. JACKSON, Relator, v. The OWEN CIRCUIT COURT and William T. Sharp as judge of said court, Respondents. Marion J. JACKSON, Appellant, v. Melvin L. JACKSON, Appellee. |
| Court | Indiana Appellate Court |
Charles W. Edwards, Edwards & Fountain, Spencer, for appellant.
William T. Sharp, pro se for respondents.
Vernon J. Petri, Spencer, for appellee.
MANDATE AND WRIT OF PROHIBITION IN AID OF
APPELLATE JURISDICTION
The appellee in this cause, Melvin Jackson, has filed a Petition for Alternative Writ of Mandate and Writ of Prohibition in aid of the Court's Appellate Jurisdiction, seeking a writ of prohibition against the respondent Judge prohibiting him from exercising any further jurisdiction in Cause No. 73--C--65 in the Owen Circuit Court, and also seeking a Writ of Mandate to command the respondent Judge to expunge from the records of the respondent court the order making a nunc pro tunc entry of the trial judge's certificate ordering the filing of the transcript of the evidence entered in Cause No. 73--C--65 in the Owen Circuit Court on April 2, 1974.
The appeal of Cause No. 73--C--65 of the Owen Circuit Court is pending in this Court as Marion J. Jackson, Appellant, v. Melvin L. Jackson, Appellee, Cause No. 1--174--A--11. After the record of the proceedings and the appellant's brief were filed, the appellee filed his motion to affirm the judgment of the trial court, alleging therein that the questions sought to be raised on appeal require a consideration of the evidence, but that the evidence was never filed with the clerk of the trial court and made a part of the record and therefore is not properly before this Court on appeal.
After the motion to affirm was filed in this Court, the appellant, in an attempt to cure the record, filed in the Owen Circuit Court a Motion to Correct Record, praying that the record be corrected nunc pro tunc to show the record 'was filed herein and certify and transmit a supplemental record of the same to the Clerk of the Court of Appeals.' The appellant's motion was heard in the trial court, during which hearing the trial judge acknowledged that no order book entry had been made showing the filing of the bill of exceptions and that there was a hiatus in the record. The trial judge's statements on those points are as follows:
'I think I see what the problem is and I think that there is no question but what no order book entry was made.
The Judge then entered the following order, nunc pro tunc, as of January 22, 1974:
'BE IT REMEMBERED that on the 22nd day of January, 1974, before the Honorable William T. Sharp, Judge, the following proceedings were had in said cause, to-wit:
'Comes now the plaintiff, by counsel, and presents and tenders the record of proceedings herein for certification of the trial judge, and having examined same, it is hereby certified that said record of proceedings (sic) is a full, true, and accurate and complete transcript of the evidence introduced and offered in said cause by the parties as certified to by Virginia Farley, the reporter of this court.
'And it is further certified that said record of proceedings, including the motion to correct errors and all papers filed with the court during the course of this action are true and correct and the same are now ordered filed and made a part of the record in the office of the Clerk of the Owen Circuit Court, as provided by Appellate Rule 7.2(A)(4).
'Further ordered that the Clerk of this Court certify and transmit a supplemental record containing this record to the Clerk of the Appellate Court.
'Dated this 2nd day of April, 1974.'
The Judge's remark concerning the basis of his ruling that 'I am persuaded that the presentation of papers to the Court and to the Clerk of the Court as custodian of the records constitutes filing whether any memorandum was made of it or not . . .' was no doubt predicated on the affidavit in support of the motion to correct the record executed by one of the attorneys for the appellant, which reads as follows:
'Allen L. Fountain, being first duly sworn, upon his oath, deposes and says that:
'On the 22nd day of January, 1974, the Honorable William T. Sharp, Judge of the Owen Circuit Court, personally handed affiant the Record of Proceedings in the above-entitled cause and affiant immediately thereafter personally filed the same with the Clerk of the Owen Circuit Court by handing said record of proceedings to Margaret Tucker in the Office of the Clerk of the Owen Circuit Court and affiant personally observed said Margaret Tucker certify the same by affixing her signature and the seal of the Owen Circuit Court.
'Further affiant saith not.
s/ Allan L. Fountain
'Subscribed and sworn to before me this 1st day of April, 1974.
s/ Dorla I. Morley
Dorla I. Morley, Notary Public
My Commission Expires:
September 14, 1974'
The Clerk's Certificate appended to the record of the proceedings in the appeal now before us is in the following words and figures:
'CLERK'S CERTIFICATE
'I, Margaret Tucker, Clerk of the Circuit Court within and for the County of Owen in the State of Indiana, do hereby certify that the above and foregoing Record of Proceedings contains true and correct copies or the originals of all the papers and entries in said cause, as requested by Marion J. Jackson by her attorney, Charles W. Edwards, in the Praecipe For Record of Proceedings of October 25, 1973.
'Witness my Hand and the Seal of said court at Spencer, in the County of Owen, State of Indiana, this 18 day of Jan., 1974.
(SEAL)
s/ Margaret Tucker
Margaret Tucker
Clerk, Owen Circuit Court'
The Judge's Certificate to the transcript of the evidence and proceedings at trial, was dated January 22, 1974, four days after the date of the Clerk's Certificate. It is therefore obvious that the Clerk certified the record at a time before the transcript of the evidence and proceedings at trial could have been filed with her.
The question presented to this Court by the Petition for Alternative Writ of Mandate and Writ of Prohibition is whether the trial judge exceeded his jurisdiction when he changed his record by nunc pro tunc order AFTER the appeal had been perfected in this Court, without there being some written memorandum upon which to base his order.
The cases are legion which have held that the court's record cannot be amended, altered or changed nunc pro tunc after the term in which it was made without some written record, memorandum, memorial or note as the basis for amendment. While terms of court are no longer recognized, (Rule TR 72(A)), it is now thought that a trial court may change his record at any time until he rules on a motion to correct errors, but that after a denial of the motion to correct errors, he loses jurisdiction to do anything further in the case. (With the possible exception of handling emergency matters, similar to the residual jurisdiction left after a judge grants a motion for change of venue.)
In Bobbitt, Indiana Appellate Practice and Procedure, Volume 1, p. 352, he states:
'After a motion for new trial has been granted or denied, the trial court has no jurisdiction to reconsider the matter after the statutory time for doing so has expired.'
In Harvey, Indiana Practice, Vol. 4, p. 118, we find the following:
'Once a ruling is made on a motion to correct errors it may not be reconsidered by the trial court.'
Rule TR 60(A) which sets out the procedure for correcting clerical mistakes in the record, provides that during the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the court on appeal, and thereafter while the appeal is pending, may be so corrected with leave of the court on appeal. (Our emphasis)
It has been held that the purpose of a nunc pro tunc entry is to put into the record some action of the court which has been omitted from the record by mistake. Wiltrout, Indiana Practice, Volume 3, § 2607, p. 329, Taylor v. State (1921), 191 Ind. 200, 132 N.E. 294; Slinkard v. Wilson, (1952), 125 Ind.App. 76, 105 N.E.2d 342; Green v. State (1952), 123 Ind.App. 81, 108 N.E.2d 647.
In the case of Taylor v. State (1921), 191 Ind. 200, 132 N.E. 294, our Supreme Court stated:
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