Vance v. Railway Co.
| Citation | 53 W.Va. 338 |
| Court | Supreme Court of West Virginia |
| Decision Date | 25 April 1903 |
| Parties | Vance v. Railway Co. |
An interlocutory order, omitted to be entered by neglect or mad vert anee on the part of the clerk of a court, may be ordered, by the court, to be entered nunc pro tunc, by way of amendment, so as to make the record show what has actually transpired in the cause, upon clear and satisfactory evidence, consisting of uncontradicted affidavits, and papers filed, and orders entered, in the cause, (p. 342).
A mere announcement by a judge in court of his opinion to sustain a demurrer to evidence, without an order or direction to the clerk to enter judgment accordingly, is not a sufficient rendition of judgment to warrant the entry of it as final judgment nunc pro tunc, when it further appears that absence of counsel was the reason for not ordering it to be entered at the time of the announcement, (p. 343).
By demurring to the evidence, the demurrant admits, in favor of the demurree, all inferences of fact that may be fairly deduced from the evidence, (p. 342).
Having knowledge of the negligent practice of a railroad company in making '"Flying Switches" over a street crossing, came to the crossing on a starlit, but moonless, night, just as an engine was approaching, and after waiting for it to pass, stepped upon the side track on which the cars following the engine were, and was struck and injured by a box-car, so following, without a light or person on it, and without any signal having been given. V. and his father, who was with him, testify that, after the passage of the engine and before proceeding, they looked down the track for cars and saw none. As to the extent of the darkness and whether lights in a passenger coach at the rear of the box cars could, or ought to have been seen by them, the evidence is conflicting and uncertain. Held: That on demurrer to the evidence, judgment was properly rendered for the plaintiff. (p. 346).
Error to Circuit Court, Roane County.
Action by Joseph B. Vance against the Ravenswood, Spencer & Glenville Railway Company. Judgment for plaintiff, and defendant brings error.
The Ravenswood, Spencer and Glenville Railway Company complains of a judgment rendered against it by the circuit court of Roane County for $525.00 in favor of Joseph B. Vance, in an action for personal injury inflicted upon him by the alleged negligence of the plaintiff in.error, and one of the principal grounds of error is that the court entered a nunc pro tunc Ord er.
The first order shows the overruling of the demurrer to the declaration, the second, the allowance of compensation to the stenographer, and the third, defendant's demurrer to the evidence and plaintiff's joinder therein. They were made in April and August, 1898. The next was made on the 19th day of April, 1901, as of the 29th day of August, 1898, upon the affidavits of the three attorneys for the plaintiffs, showing that it should have been entered on said last mentioned date, hut had been inadvertently omitted by the clerk. That order sets forth the entry of the plea and joinder therein, the impanneling of the jury, demurrer to the evidence and joinder therein and the conditional verdict. On the 27th day of August, 1901, the judgment herein complained of was rendered.
Between the date of the trial and the date of the entry of the nunc pro tunc order, Hon. Reese Blizzard, the judge before whom the trial was had, resigned, and was succeeded by Hon. Warren Miller, who entered said order and rendered the judgment. That there had been a trial, demurrer and conditional verdict was not disputed by any counter affidavit, upon the motion for the entry of the order. The affidavit filed was strongly corroborated by the former orders entered, the last one of which showed that there had been a. demurrer to the evidence and a joinder therein, and concluded as follows: '
As the record left no room for doubt that the interlocutory proceedings omitted from the record had taken place, the only inquiry is as to the power of the court, by amendment, of the record, to make it speak the truth. At common law, the courts might amend their records so as to make them truthfully set forth what had occurred, while the proceeding was in fiere, but not after the term at which final judgment was rendered. This rule resulted, in such great hardship that relief was given by early English statutes. Stat, 1, eh. 6, 14 Edw. Ill; Stat, 1, ch. 4, 9 Edw. V; ch. 12, 8 Henry VI. See 17 Enc. PI. & Pr. 919. The amendment complained of here is not forbidden by even the common law rule, for the reason that it was made before judgment. It was a mere interlocutory order. Whether, if final judgment had been entered, and the mistake had afterwards been discovered, the amendment could have been made so as to support a judgment already rendered, need not be decided. As in that ease, the amendment would be an alteration of the record after judgment, the rule might be different. In 17 Enc. PI. & Pr. 920, it is said that the rule now very generally obtains that a court may amend its record as to clerical errors and misprisions as well after the term as during it, and, for this, decisions of a great many of the states are cited, including two in Virginia, Commonwealth v. Winstons, 5 Rand. 546, and Marr v. Miller, 1 Hen. & Munf. 204. That an interlocutory order may be entered mine pro tunc has been decided by the Supreme Court of the United States, In Re Wight, 134 U. S. 136. After quoting from Bishop on Crim. Proc, sec. 1160, Mr. Justice Miller says: "An extensive list of authorities is cited in the foot-note of Mr. Bishop, and. among those which support the power of the court to make a record of some matter which was done at a former term, of which the clerk had made no entry, the following cases directly affirmed that proposition: Galloway, Administrator, v. McKeithen, 5 Iredell (Law) 12; Hyde v. Curling, 10 Mo. 374; State v. Clark, 18 Mo. 432; Nelson v. Barker, 3 McLean 379; Bilansky v. The State of Minnesota, 3 Minn. 427." To this list may be added Steenrod's Admr. v. Railroad Co., 25 W. Va 135; Miller's Admr. v. Cook's Admr., 76 Va. 806; Wright v. Strother, 76 Va. 857; Kendrick v. Whitney, 28 Grat. 652; Knefel v. People, 187 111. 212, 79 Am. Dec. 217; Kaufman v. Shain, 111 Cal. 116, 52 Am. St. Rep139; Frink v. Prink, 43 N". II. 508, where it is said: "But the court has authority to amend its records so as to make them conform to the actual facts and truth of the case; and may in its discretion, receive and act upon any competent legal evidence;" Davis v. Shaver, Phillip's Law (N. C.) 18, 91 Am. Dec. 92; Weed v. Weed, 25 Conn. 337. The principal objection to the entry of this order seems to be that the date of the certifi eate of the stenographer to the evidence set forth in the demurrer is later than the date of the order, from which it is argued that the evidence in the case was not embraced in the demurrer to the evidence. The demurrer and joinder therein are formal and regular in all respects and are made a part of the record, it being recited in an order entered August 30, 1898, that they were filed. The evidence is incorporated in them, and there is nothing to indicate that it is not the evidence adduced in the case but the late date of the stenographer's certificate. The record shows inferentially that; there was a stenographer sworn in the case and the evidence incorporated in the demurrer is certifiled by the same person who was allowed compensation as stenographer, and. the court, no doubt, had other evidence before it tending to show that the evidence inserted in the demurrer is the evidence given upon the trial, and its finding upon that matter cannot be overthrown because of the mere fact that the stenographer certified the evidence as of a later date. No authority is cited for the contention on this point, and it is not believed that there is any authority of that kind.
After said order was entered, the defendant moved the court to enter final judgment for it nunc pro tunc, as of the August term, 1898, and the action of the court in overruling that motion and declining to make the entry is assigned as error. In support of this motion, the defendant presented the affidavit of the retired judge who had presided at the trial, setting forth, in substance, the proceedings, and stating that, at said August term, he had "rendered his opinion upon said demurrer to the evidence, and sustained said demurrer to the evidence," but "judgment was not entered in accordance with the opinion of the court, so rendered, because counsel for the defendant were non-residents of Roane County, and none of them were present to see that a proper order was prepared and to ask that the same be entered." In a valuable note appended to the report of Ninde v. Clarke, 4 Am. St. Rep. 823, giving a long list of decided cases bearing upon the question, it is said: ...
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