Wilson v. Town of Hansboro

• Decision Date: 03 April 1911
• Docket Number: 14,637
• Citation: 99 Miss. 252,54 So. 845
• Court: Mississippi Supreme Court
• Parties: G. E. WILSON v. TOWN OF HANDSBORO

54 So. 845

99 Miss. 252

G. E. WILSON v. TOWN OF HANDSBORO

No. 14,637

Supreme Court of Mississippi

April 3, 1911

APPEAL from the circuit court of Harrison county, HON. T. H BARRETT, Judge.

G. E Wilson was convicted of failing to work the streets of the town of Handsboro and appeals.

This is an appeal from a conviction for the failure to work the streets of a municipality. The case on former appeal is reported in 50 So. 982. It is contended on this appeal that the court below should have sustained the motion to discharge defendant, because no replication had been filed to the plea of former jeopardy. The record shows that there was a demurrer introduced to this plea which the court sustained at a former term, but the judgment, through some error, showed that the demurrer was overruled, and that at a subsequent term of the court an order was entered correcting the erroneous judgment. With this demurrer stricken out, the case then proceeded to trial on its merits, resulting in a conviction, from which an appeal is taken. Among other errors assigned, there is presented for review the question of the authority of the court at a subsequent term to correct an error in a judgment entered at a former term.

Affirmed.

E. M Barber, for appellant.

My contention being that the court at a subsequent term had no authority to change the minutes of a former term wherein the demurrer had been overruled and making an order sustaining same.

"A plea of former jeopardy" is a "plea in bar" and the demurrer, of course, confessed the facts set up in the "plea in bar," and when the minutes of the court showed that the demurrer had been overruled, at the expiration of that term of the court, that was a final judgment in behalf of defendant. George's Digest 585, Demurrer to Plea; Bailey v. Gaskins, 6 H. 519; Lang v. Fatheree, 7 S. & M. 404; Shields v. Taylor, 13 S. & M. 127; Hardin v. Pelam, 41 M. 112.

Jas. R. McDowell, assistant attorney-general, for appellee.

It is contended that the court should have sustained the motion to discharge the defendant because no replication had been filed to the plea of former jeopardy. As a matter of fact, there was a demurrer introduced to this plea which the court sustained at a former term, but the judgment through some error showed that the demurrer was overruled. At the next term, the court entered a judgment correcting the error. Counsel contends that the court is without authority at a subsequent term to correct such an error in such a judgment. On the former trial, this point was not determined by the court and is raised now in this trial. This not being a final judgment, can be corrected at a subsequent term.

By reference to 17 Am. and Eng. Ency. Law, 2d Ed., p. 816, your honors will see that the rule is that, after the expiration of the term, the court is without power to amend a judgment in any matter of substance or relating to the merits of the cause.

"GENERAL RULE: It is a power inherent in the authority of every court having general jurisdiction, to correct errors in the making up of records, whereby they fail to express the truth in regard to its proceedings, and this power can be exercised by the court at any time when an error is brought to its attention, when no injury is likely to result to the parties or other persons by its exercise. Therefore the court may at any time, even after the expiration of the term at which a judgment was entered, correct or amend the entry thereof so as to make it conform to the judgment which the court actually rendered."

Here the judgment failed to express the truth in regard to the proceedings and, of course an error could be corrected. No court would permit the error to stand in the record if it militated against the defendant. Then why should the defendant ask to take advantage of this error. His rights could not be affected by the correction, and the state is entitled to have the record express the truth.

Our own court in Le Blanc v. I. V. Railroad Co., 73 Miss. 463, has so expressly held; and I deem it unnecessary to prolong the argument on this point. This point is fully covered in the admirable brief of Hon. George Butler in case No. 13883, to which I refer the court.

OPINION

WHITFIELD, C.

The effort here is to have the court correct a judgment rendered at a former term, which judgment recited that the demurrer to a plea of former jeopardy had been overruled, by showing that in truth and in fact the demurrer had been sustained, and that the mis-entry was due solely to a clerical omission by the clerk. In other words, the effort is to make the record speak the truth, to recite the judgment which the court actually rendered, instead of a judgment the direct opposite of the one which the court had actually rendered.

This is a criminal case. Consequently section 1016, of the Code of 1906, which is section 940 of the Code of 1892, has no application. See McCarthy v. State, 56 Miss. 294. Some of the earlier authorities in this state on power of the court to correct a judgment rendered at a former term, so as to make it speak the truth, are collected in this case. All of them may be found set out in note 1 at page 99 of the first volume of Freeman on Judgments. It is undoubtedly true that these earlier authorities hold that no such correction could be made, even by resort to memoranda made by the judge. This was found to be entirely too harsh a rule, and so in the progress of our jurisprudence section 940 of the Code of 1892 was passed, which expressly provided that "such correction could be made by the docket or other memoranda by the judge or chancellor." This clause of said section 940 was intended to change, and, of course, did effectually change, the rule that the docket or memoranda of the judge could not be used as the evidence whereby to make such correction. But this section 940 of the Code of 1892 (section 1016 of the Code of 1906 relates only to civil cases.

Another most important observation is due to be made just here, and that is that section 1016 refers alone to corrections of mistakes in "miscalculation, or misrecital of any sum of money or quantity of anything, or of any name," and that such section is not applicable, consequently, to a case where the effort is to entirely change the judgment, incorrectly entered on the minutes by the misprision of the clerk, to a totally different judgment, which had been actually rendered by the court. Wherever the effort is to do this latter thing, to change entirely a judgment from the one entered on the minutes by the mistake of the clerk to one wholly different actually rendered by the court, the power to do so is not derivable, either in civil or criminal cases, from said section 1016, or from any other statutory enactment, but is a power inherent in all courts of record. Says Mr. Freeman in section 71, vol. 1, on Judgments: "All courts have inherent power to correct clerical errors at any time, and to make the judgment entry correspond with the judgment rendered. This power exists in criminal prosecutions as well as in civil cases." And again he says: "In whatever respect the clerk may have erred in entering judgment, the court may, on proper evidence, nullify the error by making the judgment entry fully and correctly express the judgment rendered." And lie cites, among other cases, the case of Morrison v. Stewart, 21 Ill.App. 113, where the judgment was changed from a judgment for the plaintiff to a judgment for the defendant. Says Mr. Black, in his work on Judgments (section 161): "This power, being inherent, belongs to a court merely as such, and does not depend upon a statutory grant of jurisdiction." In the case of King v. State Bank, 9 Ark. 185, 47 Am. Dec. 739, the court says: "As to the power of the court below to allow the amendment in question, there can be no doubt at all. The authority of the court, in such cases, does not arise from the statute of amendments, and jeofails, although this statute controls in cases of amendment after writ of error brought, but from the high equity powers of the court, which enable it to amend in whatever may be necessary to make the record speak the truth, whenever the ends of justice require such amendment." See Hart v. Reynolds, referred to in Chichester v. Cande, 3 Cow. 44, 15 Am. Dec. 238.

In Mars v. Quin, 6 Term. R. 8, Lord Kenyon, C. J., says: "The forms of the court are always best used when they are made subservient to the justice of the case." And Ashhurst, J., observed: "It is admitted that amendments have been made at all times in order to forward the justice of the case." In that case the court put the judgment forti manu two years back to prevent injustice, because it could not injure third persons. In King v. Mayor of Grampond, 7 Term. R. 699, Lord Kenyon says: "I wish that that could be attained that Lord Hardwicke, in the case before him, lamented could not be done, namely that these amendments were reduced to certain rules; but, there being no such rules, each particular case must be left to the sound judgment of the court. And the best principle seems to be that on which Lord Hardwicke relied in that case, that an amendment shall or shall not be permitted to be made as it will best tend to the furtherance of justice. Amendments of this kind are not made under the statute of jeofails, but under the general authority of the court."

We think it is perfectly clear that this power, with which we are dealing, the one to correct a judgment rendered at a former term, not in some clerical matter merely, as to name or amount, but so as to strike out a judgment erroneously entered by mistake of the clerk, and substitute for it the wholly different judgment actually rendered by the court, is a power inherent in every court of...