Childress v. Carley

46 So. 164, 92 Miss. 571

• Court: Mississippi Supreme Court
• Decided: March 15, 1908
• Status: Published

Opinions

Mayes, J.,

delivered the opinion of the court.

There is no charge of fraud in the bill of complaint filed in this cause, nor is there any contention that the judgment entered on the minutes of the court was a different judgment from the one which the court ordered the clerk to place there. The real question in the case, and the only question, arises out of the fact that the judge finally adjourned his court on Saturday night, the. 15th day of June, 1907, after the rendition of the judgment in question, but before the judgment was actually put on the minutes by the clerk. The object of the bill filed is to show that the judgment was not actually entered at the time of its rendition, nor was it on the minutes of the court at the time tbe judge signed tbe minutes finally adjourning tbe court. It-is offered to be shown that the judge signed the minutes, leaving blank pages in front of his signature to be filled in with this judgment, and adjourned court before the actual entry of the judgment, which was subsequently placed on the minutes by the-clerk, on the following Monday, about 9 or 10 o’clock, above the signature of the judge made on Saturday. No irregularity is shown on the minutes of the court; but it is sought to make proof of this by the clerk, his deputy, and the sheriff. The minutes are in all respects regular, and, as far as anything is shown by them, the judgment was entered, as required by statute, before the final adjournment of the court. It is claimed that the entry of this judgment after the adjournment of the court is a nullity.

The question in this case is not different from the question involved in the case of Jones v. Williams, 62 Miss., 183. In the Jones case, decided under Code 1880, § 2282, of which-Code 1906, § 1007, is an almost identical copy, proof was offered to contradict the record of the court as to the day of adjournment, and the court said: “The settled doctrine seems to be that evidence to vary a date shown by the record is not permissible. Judicial records, required by law to be kept, are said to import unerring verity, and to be conclusive evidence-against all the world as to their existence, date, and legal consequences. The minutes of the proceedings of the circuit .court are required to be entered by the clerk, read in open court, and signed by the judge, and on the last day of the term the minutes shall be drawn up, read, and signed on the same day, or before-the adjournment of the court. These minutes are a record of the most solemn character, and entitled to the highest degree of verity ever attached to records.” In the case we are now considering it is sought to contradict the minutes of the court by proof that a judgment, shown by the minutes to have been rendered and entered as required by law on the records of the-court before final judgment, was' not in fact so entered, but in truth was not entered until two days after final adjournment of the court. The case of Jones v. Williams is decisive of this case; but we are not without other apt and strong authority. Any contrary holding would bring about immeasurable evil and result in the destruction of the stability of all judicial records.

In Wigmore on Evidence, p. 3457, § 2450, dealing with this very question, in speaking of judicial records, it is said: “The record being the sole embodiment of the judicial proceedings, no other materials or utterances, oral or written, can be set up in competition with it. In other words, but less correctly, the record is conclusive. This is so, even though the record has not been made up; for herein appears the compulsory nature of the rule. It must.be made up, and, if it is not, then in legal theory there is no judgment or legal proceedings; and it is always in the power of litigating parties to prevent hardship by ■compelling the proper officer to make up the record.” We quote the. above from Wigmore with approval. The law requires the record to be complete, and when it so purports to be on its face in law it is complete, and it is not subject to impeachment. It is within the power of litigating parties to compel the officer to perform his duty and make up the record in literal compliance with the statute; but, if the litigating parties do not do this, the law is not at fault. A party to be affected by the record, and desiring it to be complete before it is signed by the judge, by the exercise of ordinary care can see to it that it is correctly made up, and if he fails to do so he cannot after-wards complain. In the case of Wells v. Stevens, 2 Gray (Mass.) 115, in speaking of the right to impeach a judicial record, the court said: “The rejection of such evidence is an obvious and inevitable consequence of the incontrovertible verity which the law, for reasons lying at the foundation of all well-ordered jurisprudence, attaches to judicial records. Judges and magistrates are responsible to the government from which, they derive their authority, but not to individuals, for the negligent or willful violation óf official duty.”''

Because we decide this ease on other grounds, we are not to 'be understood as holding it competent, for an officer, charged with the duty under the law of keeping a record, to impeach that record by his own testimony.

Affirmed.