Turnbow v. Baird

• Decision Date: 26 April 1920
• Docket Number: 367
• Citation: Turnbow v. Baird, 220 S.W. 826, 143 Ark. 543 (Ark. 1920)
• Parties: TURNBOW v. BAIRD
• Court: Arkansas Supreme Court

220 S.W. 826

143 Ark. 543

TURNBOW v. BAIRD

No. 367

Supreme Court of Arkansas

April 26, 1920

Appeal from Pope Circuit Court; A. B. Priddy, Judge; affirmed.

Judgment affirmed.

Sellers & Gordon and J. T. Bullock, for appellants.

The court erroneously arrived at its conclusion in this case, and the nunc pro tunc judgment should be entered showing all necessary jurisdictional facts, as shown by the evidence in the cause. It was absolutely necessary for the circuit court to find that appellee was eighteen years of age and a resident of Pope County, and the fact that the court took jurisdiction and made the order removing disabilities with full knowledge of the requirements of the statute is conclusive evidence that the age of appellee was duly considered and adjudicated. 75 Ark. 12; 40 Id. 224; 17 Id. 100; 19 Id. ; 25 Id. 214; 33 Id. 220; 34 Id. 300; 40 Id 224. All these cases hold that in furtherance of justice the circuit court should order its record amended to speak the truth. See, also, 72 Ark. 229; 75 Id. 12; 1 Freeman Judg., 74; 42 Am. Dec. 153; 47 Am. Dec. 153; 64 Id 316.

Robert A. Ragsdale and Hays & Ward, for appellee.

1. The judgment should be affirmed, because--

There was no motion for new trial.

The decision here is conclusive.

(3) The decision is correct upon the evidence produced; and,

The circuit court was without jurisdiction when the petition was filed, December 1, 1914.

Kirby's Digest, § 6215; 46 Ark. 17; 21 Id. 399; Ib. 404; 26 Id. 479; 26 Id. 536; 93 Id. 382; 13 Id. 355; 3 C. J. 984; 95 Ark. 62; 90 Id. 377; 68 Id. 83; 86 Id. 267; Ib. 504; 73 Id. 190; 135 Id. 445; 53 Id. 161; 73 Id. 187; 86 Id. 259; 125 Id. 135; 129 Id. 304; 40 Id. 224; 78 Id. 364; 118 Id. 593.

2. A record should only be amended to make it speak the truth, and the circuit court had no jurisdiction to make any orders upon the petition of Turnbow, as administrator, on December 1, 1914. Kirby's Digest, § 1309; Acts 1911, p. 251; 54 Ark. 642. By the act of May 4, 1911, the jurisdictional fact is added to that of residence, that the applicant if male must be eighteen years of age.

OPINION

SMITH, J.

On December 1, 1914, a day of the regular November, 1914, term of the Pope Circuit Court, Hon. G. O. Patterson, presiding as special judge, made and entered an order and judgment removing the disabilities of minority of Willie H. Baird, one of the heirs at law of W. A. Baird, deceased, for the specific purpose of enabling him to join with the adult heirs of the said W. A. Baird in the conveyance of certain real estate descended to them from said decedent. The judgment is defective in that it does not show the said Willie H. Baird to have been a resident of Pope County, and does not show that he was eighteen years of age when the order was made. Appellants became the purchasers of Willie H. Baird's interest, and brought this proceeding to have the record amended by a nunc pro tunc order reciting the jurisdictional facts in regard to the age and residence of the petitioner. The court heard the evidence in the whole case, and denied the prayer of appellants, from which judgment comes this appeal.

Appellee Willie H. Baird resisted the prayer of appellants, and has raised several questions of pleading, which we find it unnecessary to decide, as, in our opinion, the court below properly disposed of the motion on its merits.

A large number of witnesses testified in the court below, and the case is here on a voluminous record, and the property involved is shown to be very valuable. Young Baird wasted the proceeds of the sale of the property by the time he had attained his legal majority (as is usually done in such cases), and after becoming of lawful age repudiated his deeds to appellants.

The testimony shows very clearly that appellee was not eighteen years old when the order was made, yet that is not the controlling question in the case. The question is whether or not the testimony showed the petitioner to be eighteen years old when the petition was heard, and did the court find the fact so to be?

The petition recited the residence of the petitioner to be Pope County, but alleged that petitioner was " years old." Mr. Patterson appears to have sworn and to have examined the witnesses at the original hearing, and there was in attendance at the time about the usual number of persons found in a circuit court room when court is in session without a jury. Several of these spectators testified at the hearing from which this appeal comes, but as there was nothing out of the ordinary to impress that proceeding upon them their testimony is not as satisfactory as it might otherwise have been. No one of them testified that any particular witness had stated what appellee's age was at the time, although appellant Turnbow testified that he was present in court when the order was made, and he remembers that the testimony then heard showed appellee to be eighteen at the time. Several witnesses testified that appellee was present when the order was made, and that he was accompanied by his guardian. But the testimony in the record now before us appears to establish the fact that appellee was in Detroit, Michigan, at that time. This circumstance was not brought out as questioning the good faith of the persons who were acting for appellee, but was offered as showing the fallibility of the memory of the witnesses.

The strongest testimony for appellant is that of Mr. Patterson who testified that he knew what the statutory requirements were, and that he would not have made the order unless those requirements had been met. He did not claim, however, to have any independent recollection on the subject, and he did not undertake to say that he remembered that any witness gave testimony concerning appellee's age. He made the following notation upon the judge's docket: "Order removing disabilities of minority for the purpose of selling certain interests in real estate, as per precedent." The deputy clerk who entered...