Steverson v. McLeod Lumber Co.

• Decision Date: 26 May 1919
• Docket Number: 20763
• Court: Mississippi Supreme Court
• Parties: STEVERSON v. MCLEOD LUMBER CO

81 So. 788

120 Miss. 65

STEVERSON v. MCLEOD LUMBER CO

No. 20763

Supreme Court of Mississippi

May 26, 1919

Division A

1 EVIDENCE. Parol evidence. Contradictions of minutes of court.

Where a motion was made to quash a writ of execution and vacate a default judgment on the ground that it was rendered on on what purported to be the first day of a regular term of the circuit court, when there could not have been a regular term begun and held on such day. In such case it was not permissible by parol evidence to contradict the minutes of the court showing that the term was begun on one day, by showing that in fact it was begun on a later day.

2 Same.

Judicial records required by law to be kept are made to import unerring verity, and to be conclusive evidence against all the world as to their existence, date, and legal consequences.

3 COURTS. Circuit courts. November term. Statutes.

Since the law provides that the regular November term of the circuit court of Forrest county must convene on the first Monday thereof, it follows that no regular term of this court could be convened on the third Monday of November except as provided by section 989, Code 1906, and that a court begun on this date was not a legal court, and therefore its judgments and orders were void, because the court was held at an unauthorized time.

HON. R S. HALL, Judge.

APPEAL from the circuit court of Forest county, HON. R. S. HALL, Judge.

Suit by J. M. Steverson against the McLeod Lumber Company. From a judgment setting aside a default judgment and quashing the execution issued thereon, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

Tally & Mayson, for appellants.

The circuit court is a court of general jurisdiction and its judgments and proceedings are regarded as right unless the contrary clearly appears. Judges of the circuit and chancery courts have the power to cause the court to be convened and adjourned to a particular day as appears to be comtemplated in Code 1906, section 989, Hemingway's Code, section 709; but in the instant case the judge was present to direct the court to be opened and adjourned for the space of two weeks at which time he directed it to be re-convened. Court did convene two weeks from that day and stayed in session two or three weeks, tried many cases both civil and criminal. Amongst other judgments rendered, as appears from the minutes, were quite a number sentencing parties to the state penitentiary for felonies committed. A grand jury was empaneled which returned bills of indictment, some of which were for capital felonies. If any authority was needed conferring upon the judge the power to open the court and adjourn it to a certain other day during the term, the power is especially conferred by p. 990 Code of 1906, Hemingway's Code, p. 710. The failure of the clerk to enter the order, as directed or requested by the judge, did not deprive the court of jurisdiction. Ex parte Neil, 90 Miss. 518, 43 So. 615; Enc. Pl. & Pr. p. 239, Corpus Juris, Vol. 1, Page 980.

In the case of the State v. Harp, (La.), 63 So. 500, the facts are somewhat similar to the case at bar, except that Mr. Harp was convicted of a capital felony. The court says: "The subsequent minutes do not formerly recite the opening of the court but now that all proceedings during the trial were had in open court and that the accused was sentenced and appeared in open court. We therefore conclude that no fatal defects are patent on the face of the imperfect record before us. We are constrained, however, to admonish the clerk to keep the minutes of his court in proper form."

The case of The State v. Thompson (La.), 46 So. 1013, the facts are very similar insofar as the postponement of the court is concerned, to the case at bar. This was also a criminal case. The party was indicted November 18, 1907, and arranged on November 19, 1907. He moved to quash the indictment. Says the court: "The evidence taken on the motion to quash shows that the regular criminal term to commence on the fourth Monday of August, 1907, was not held but was adjourned. There is some dispute as to whether or not the court was adjourned sine die by the sheriff, but the evidence is clear that the judge ordered the court to be adjourned until the second Monday in November, and instructed that a venire of jurors be drawn and summoned for that date.

The clerk, through inadvertence, did not enter the order on the minutes; it further appears that this adjournment was made at the unanimous request of members of the local bar and officers of the court. On the trial of the motion to quash the judge ordered the clerk to correct the minutes on the regular term to show what had occurred. The record does not show but the presumption is that the minutes were corrected as ordered."

The learned circuit judge who sustained the motion to vacate the judgment rendered in November, appeared to be of the opinion that all acts done by the court in November were void for the reason that it needed an entry on the minutes of the court by the clerk, on the first day that the court was to have convened, to vitalize any subsequent proceeding. In this, we think, he is in error. There is quite a difference in showing what actually transpired, and undertaking to establish something that had no existence at all. There is and can be no dispute as to what was done by the judge, the clerk, the sheriff, and members of the bar, on the fourth day of November, 1918. If nobody had assembled at the court house for the purpose of holding court, then there would have been no authority for the clerk or anyone else to enter upon the minutes of the court an order reciting that something was done when in fact it was not done. The learned judge, then had the idea to show by the officers of the court, including the former judge, what was in fact done on the first day of the term of the court was an effort to vary, contradict or alter a public record by parol evidence.

In the case of Palmer v. The State, 73 Miss. 780, 20 So. 156, the term of the court had been opened by one circuit judge whose term expired in the middle of the term. A day or two after his term expired his sucessor was appointed and resumed the business of the court where his predecessor had left off. The contention was made by able counsel that there was an hiatus in the term of the court, but that reason does not appeal to the court. Says the court "plainly this statute (referring to Code 1906, p. 990, Hemingway's Code, p. 710) prevents a discontinuance of the term of the court after the term has been commenced, because of a failure to sit, of the court, from any cause, from any day of the term that is once begun. The illness of the judge for a day; the death or resignation of the judge and a vacation in this office for a day; or the expiration of a term of office of the judge who began to reside over the court, or the intervention of a day before his sucessor qualifies and appears in the court, shall not work a discontinuance of the term.

We respectfully insist that when the court is open and directed by the judge to be adjourned to a certain day, that the re-assembling of the court on that particular day confers upon the court the jurisdiction to hear and determine causes for the rest of the term, whether the clerk discharge his official function by the entry of the order on the minutes or not. The entry of the order does not confer jurisdiction nor does the failure to enter the order oust the court of jurisdiction. Er Parte Neil, 90 Miss. 518, 43 So. 615. The death of a judge in the middle of a term and the expiration of some time before his sucessor was appointed, would not have the effect of discontinuing the term. Ellis v. The State, Am. St. Rep. 953.

The clerk misconceived the law in supposing that it was necessary to have a written order from the judge, directing the court to be opened and adjourned to a particular day. That is only necessary when the judge is absent; Code 1906, p. 989, Hemingway's Code, p. 709. We take it that the reason it was necessary to have a written order was the fact that the judge was not present to speak for himself or for anyone else to do it and parties having business before the court could consult the clerk and read the order, if they saw proper, and know when to return, and manifestly it was not supposed necessary to have a written order when the judge himself was present and living almost in a stone's throw of the court house. It was not thought necessary that the order should be in writing when the judge was present. We think that is a reasonable construction to be placed upon Code of 1906, p. 990, Hemingway's Code, p. 710.

The date of an adjourned session may be fixed by oral order in open court, and while it is the duty of the clerk to make a note of such an order, the failure to do so is not fatal to the validity of the adjourned session; 15 Corpus Juris., p. 895, 258d.

Counsel are entitled to rely upon the court officers to properly record in the minutes proceedings had in open court and a default in making an entry cannot prejudice parties who rely on the integrity of the record. The failure of the clerk or recording officers to make a correct record, does not vitiate the proceedings in a court of record; 15 Corpus Juris., p 980, p. 405. No effort is made in this case to contradict the true minutes of the court. Our contention is that if the minutes do not show everything that they should show; that the defects and omissions are the result of inadvertence, which has no bearing whatever on the question as to whether the court did or did not have jurisdiction. If, however, it should not appear by a minute entry, that the court was opened on a certain...