Hershy v. Baer

45 Ark. 240

• Court: Supreme Court of Arkansas
• Decided: May 15, 1885
• Status: Published

Opinion

Cockrill, C. J.

The appellee sued the appellant to remove a cloud from the title of real estate in Fort Smith, and on the 6th of February, 1884, a decree was entered in his favor in accordance with the prayer of the complaint. From this decree the clerk of this court granted an appeal in May, of the same year. Pending the appeal the circuit court, where the decree was rendered, caused the record to be amended so as to recite that the cause had been heard on oral as well as written evidence. This was done by an appropriate nunc pro time order. The appellant by attorney opposed the granting of the motion to amend the record, and after the order was made asked the court, as the record entry recites, “to allow him a reasonable time within which to prepare and present, in the form of a bill of exceptions, all the evidence, written and oral, which was introduced on the trial of the cause, and have the bill of exceptions, when prepared, filed and made a part of the record.” The court declined to comply with the request. The record of the proceedings, had subsequent to the appeal, has been brought here by certiorari, upon suggestion of a diminution of the record.

1 Amending e nunc pro

The power of a circuit court to amend its record so as to cause it to speak the truth is one inherent in the idea of justice itself. The power has been frequently exercised pending an appeal to this court, and the amended record has in every such instance been treated as the true one. The appellant’s contention that the insertion of the words oral evidence in the reciting part of the decree, revives his right to file a bill of exceptions, is not tenable. That right had expired with the term at which the decree was rendered, and the circuit court, unless sitting in chancery in a proceeding for the purpose of relieving against fraud, accident or mistake, had lost control over the matter. St. Louis, I. M. & S. Ry v. Holman, ante, p. 102; Carroll v. Pryor, 38 Ark., 283.

The amendment that was made added nothing to the force of the decree. It was merely the record of a fact, which the appellant as a party to the suit is presumed to have had knowledge of from the first. Indeed the decree recites that the cause was heard on the “bill, answer, exhibits and proofs,” and the court found as facts that the appellee had established his title by.limitation as well as by deed.

2. Presumption in supreme court from fectoftranscript.

The record here contains none of the appellee’s paper title, . . no proof whatever except the appellants chain of title 1 x 1 A tracing to a source common with that found by the court for appellee.

It is evident from this, without the aid of the amendment, that the court had before it evidence which the record does not contain, and we will presume that it was sufficient to sustain the finding of the court and the decree. Omnia praesumuntur rite esse acta donee probetur in contrarium. This presumption prevails after decree rendered, to the extent of curing every defect in the allegations of the pleading which by reasonable intendment may be considered as having been proved. Everything necessarily implied from the facts stated will be presumed to have been proved. A title defectively set •out is aided by the finding of the chancellor as it would be by the verdict of a jury. Every fact necessary to a perfect complaint to remove a cloud may be fairly inferred from the complaint in the case.

Let the, decree be affirmed.