Wyatt v. State, 5 Div. 330

CourtAlabama Court of Appeals
Citation57 So.2d 350,36 Ala.App. 125
Docket Number5 Div. 330
PartiesWYATT v. STATE.
Decision Date15 May 1951

Page 350

57 So.2d 350
36 Ala.App. 125

5 Div. 330.
Court of Appeals of Alabama.
May 15, 1951.
Rehearing Denied June 29, 1951.

[36 Ala.App. 128]

Page 353

L. H. Ellis, Columbiana, and J. B. Atkinson, Clanton, for appellant.

[36 Ala.App. 129] Si Garrett, Atty. Gen., and Bernard F. Sykes and Jas. L. Screws, Asst. Atty. Gen., for the State.


This appellant was formerly the clerk and bookkeeper of the Court of County Commissioners of Chilton County, Alabama.

By indictment returned and filed 18 November 1949, she was charged with forgery.

Count 1 of the indictment, omitting the formal parts, charged that the appellant, 'with intent to injure or defraud, did falsely make, alter, forge, or counterfeit the endorsement of Dewey Robinson to an instrument in writing, in words and figures substantially as follows:

[36 Ala.App. 130] Count 2 of the indictment carries the same charge as the first, with the additional alternative averment that appellant did, with intent to injure or defraud, utter and publish as true the falsely made, altered, or counterfeited endorsement of 'Dewey Robinson,' the payee set out in said instrument, knowing the same to be falsely made, altered, etc.

Her jury trial resulted in a verdict of 'guilty as charged in the indictment.'

Judgment of guilt was entered pursuant to the verdict, and a sentence of imprisonment in the State penitentiary for a term of three years was imposed by the court.

Appellant's motion for a new trial being overruled, appeal was perfected to this court.

As before stated, this indictment was returned 18 November 1949. On 7 March 1950 the appellant filed a motion to quash the indictment, the substantial grounds of said motion being that the indictment was not signed by the foreman of the grand jury, and that John B. Deramus, whose name appears on the indictment as foreman was not in fact the foreman of the grand jury that returned the purported indictment. A copy of the minutes for 29 August 1949, relative to the impaneling of the grand jury, was attached to and made a part of the motion.

First National Bank of Clanton Clanton, Alabama

Pay this warrant, when properly endorsed, from the fund of Chilton County, Alabama, designated below.

W. M. Polk

Treasurer, Chilton County, Alabama.

By ________

Asst. Atty. in Fact.

Gasoline Fund

State of Alabama

No. 554

County Commission of Chilton County Clanton, Ala.,

Dec. 2 1946


To the Treasurer,

Chilton County, Alabama.

The sum of Fifty Six & No/100.....Dollars for Labr.

Pay To Or Order

Dewey Robinson

out of any moneys, not otherwise appropriated in Gasoline Fund of said County

J Lee Smith

President, County Commission of Chilton Co., Alabama.

with the following endorsement on the back thereof: 'Dewey Robinson.'-

Page 354

This motion to quash was set for hearing on 9 March 1950. However, on that day the State filed a petition requesting that the court correct the minutes recording the organization of the grant jury of 29 August 1949. This is the same minute attached as an exhibit to appellant's motion to quash.

As grounds for its petition the State averred that the said minute as entered by the clerk did not speak the truth in that persons in fact excused are shown as constituting the grand jury, while the persons shown as excused were in fact the grand jury, and that it appears from the records and quasi records of the court that the minute entry contains a mere clerical error which the court was empowered to correct.

The petition further avers that this clerical error affirmatively appears from the following:

'(a) from the original venire as returned by the sheriff and as marked by the Clerk and now filed with said Clerk,

'(b) from the order of this Court convening a special session or term of the grand jury for October 25, 1949, dated October 21, 1949 and appearing in Volume 8 of said minutes at page 333, together with a Writ to the sheriff dated October 21, 1949 to summons the grand jury and listing the correct names of said grand jurors returnable October 25, 1949 and appearing in Volume 8 of said minutes at page 346, and 347;

'(c) From Volume 17 of the final record kept by the Clerk of this court showing [36 Ala.App. 131] the organization of the said grand jury which reconvened or assembled on October 25, 1949;

'(d) From the report of said grand jury made November 18, 1949, and signed by John B. Deramus, appearing in Volume 8 of said minutes at pages 342, 343, 344;

(e) From the minute entry here sought to be corrected:

'(f) And from other records and quasi records of this court.'

The appellant filed objections to proceeding with the hearing on the State's petition to amend the minutes nunc pro tunc, asserting that the minutes were entered more than 30 days prior to the filing of the petition, and that therefore the court had lost control over said minutes; that the amendment of the minutes proposed was not a mere clerical error; and that no notice of said petition was or has been served upon appellant.

The court overruled appellant's objection and proceeded to hear the State's evidence in support of its petition to amend the minutes nunc pro tunc, and upon completion of the hearing the court entered an order correcting the minutes as prayed in the petition. To this ruling of the court the appellant reserved an exception.

The appellant thereupon filed a motion to amend and set aside the order granting the State's petition to amend the minutes. This motion was overruled and appellant excepted.

Thereafter the court overruled appellant's motion to quash the indictment, there being no evidence to sustain the motion after the minutes had been corrected by the amendment nunc pro tunc. Exception was reserved to this ruling.

The appellant's appearance in all of the above proceedings was special.

The correctness of the court's rulings in all of the above instances depends upon whether amendment of the minutes was to correct a clerical error.

In Sisson v. Leonard, 243 Ala. 546, 11 So.2d 144, 146, Justice Foster reviewed and summarized the principles relative to the power of a court to correct its records by amendments nunc pro tunc. We here quote from that opinion:

'At common law, courts were not authorized to amend judgments after the lapse of the term at which they were rendered, except for clerical errors. Van Dyke v. State, 22 Ala. 57; Buchanon v. Thomason, 70 Ala. 401; Whorley v. Memphis & C. R. Co., 72 Ala. 20, 25; Robertson v. King, 120 Ala. 459, 24 So. 929; Chamblee v. Cole, 128 Ala. 649, 30 So. 630; Wynn v. McCraney, 156 Ala. 630, 46 So. 854; Campbell v. Beyers, 189 Ala. 307, 66 So. 651; 34 Corpus Juris 215. Notice of the proposed amendment was not then necessary. Nabers v. Meredith, 67 Ala. 333; Ware v. Kent, 123 Ala. 427, 26 So. 208, 82 Am.St.Rep. 132.

Page 355

'In 1824 a statute was adopted and it appeared in Clay's Digest, 322, section 55; Code of 1852, section 2401; Code of 1867, section 2807;Code of 1876, section 3154, and in all subsequent codes, whereby judgments could be amended at a subsequent term for any clerical error, mistake in the calculation of interest or other mistake of the clerk (now also of the register).

'An Act of March 1, 1881 (page 66), provided for ten days' notice of all proceedings in courts of record to amend judgments, decrees or orders nunc pro tunc, provided it should not apply to clerical errors, nor to amendments made during the term.

'This was made section 2867, Code of 1886, and as codified it makes notice essential to a motion to amend nunc pro tunc a judgment or decree of a court of record, 'if the amendment be not of mere clerical errors.' And in that code there was also brought down the statute first enacted in 1824, supra, providing for the amendment of clerical errors and mistakes of the clerk, making it section 2836. Those two statutes have been brought down to date as sections 566 and 567, Title 7, Code of 1940. But without those statutes all courts of general jurisdiction have the power to correct clerical errors, after the expiration of the term, when the record affords matter upon which to base such correction. Otherwise 'after its final adjournment its judgments are (were) absolute and conclusive, and the court has (had) no power over them.'

[36 Ala.App. 132] 'This seems to amend the common law so as to add the power of amendment to 'other mistake (s) of the clerk' (though not merely clerical). Whorley v. Memphis & C. R. R. Co., supra. For the court had the inherent power to amend after the term all clerical errors. We take it that a mistake 'in the calculation of interest' as set out in the statute is also a clerical error.

'We now have other mistakes of the clerk, not a mere clerical error, which by statute may be corrected by a circuit court or one of like jurisdiction, section 567, supra; whereas section 566 and its predecessors apply to all courts of record.' (Emphasis ours.)

In Ford v. Tinchant & Bros., 49 Ala. 567, the Supreme Court stated that: 'Clerical errors are not those alone which the clerk makes. They include all such, being matters of record, as intervene in the progress of a cause, whether committed by the court or the counsel, to which the judicial sanction or discretion cannot reasonably be said to have been applied.'

Clerical errors are not only those made by the Clerk, but also those mistakes apparent on the record, made by counsel, or even by the court. Wilder v. Bush, 201 Ala. 21, 75 So. 143.

Further, 'A clerical error is one made by a clerk in transcribing, or otherwise, and, of course, must be apparent on the face of the record, and capable of being corrected by reference to the record only.' Trott v. Birmingham R. L. & P. Co., 144 Ala. 383, 39 So. 716, 717.

The requirement that clerical errors can be corrected by reference to the record only reflects the view of the English cases, which rule has always prevailed in this jurisdiction. Lilly v. Larkin, 66 Ala. 122.

However, as...

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