Mcdaniel Brothers Constr. Co. v. Jordy

183 So. 2d 501, 254 Miss. 839, 1966 Miss. LEXIS 1582

• Court: Mississippi Supreme Court
• Decided: February 21, 1966
• Docket: No. 43786
• Status: Published

Opinions

RODGERS, Justice:

This case came to this Court from the Circuit Court of the First Judicial District of Hinds County, Mississippi, where a judgment was originally entered in favor of Walter S. Jordy in the sum of $3,000 on August 12, 1964. The appellee filed a motion to correct judgment on August 13, 1964, but this motion was not acted upon during the regular July term which began July 6, 1964, and ended August IS, 1964. There was no order entered extending the term of court. The only order appearing on the minutes is dated August 14th and is in the following words: “Ordered and adjudged that the Court do now adjourn until 9:00 A.M. Monday.” Thereafter, on August 19, 1964, the circuit court entered an order setting aside the previous judgment in the instant case and entered a final judgment for $6,004 in favor of the appellee. The appellant, McDaniel Construction Company, Inc., has appealed from this judgment. After appellant’s brief was filed on December 15, 1965, and it became known that they contended that the final judgment for $6,004 was entered in vacation, the appellee, Walter S. Jordy, filed a motion in this Court on January 7, 1966, requesting this Court to permit him to supplement the record on appeal to show an attached order entered by the trial court on December 30, 1965. This order attempted to amend and correct the minutes of the trial court as of Friday, August 14, 1964. The appellee filed an answer to the appellant’s motion to supplement the record and asserted that no hearing was held by the trial court to determine the issue as to whether or not the failure to enter an order extending the July 1964 term was a clerical error. The appellee filed a response to appellant’s answer to its motion, stating that the attorney for appellant was notified by telephone and requested to appear at 1:30 P.M., December 30, 1965; that he did appear and examined a carbon copy of the order, but offered no rebuttal except to say that the court lacked the power to correct its minutes under the circumstances.

In the outset, therefore, it is apparent we must first determine the issue presented by the motion to supplement the record of the trial court.

Mississippi Code Annotated section 1401 (1956) provides that the July term of the Circuit Court of the First Judicial District of Hinds County begins on the First Monday of July and runs for thirty-six days. The July 1964 term of that court began July 6, 1964, and ended August 15, 1964.

Mississippi Code Annotated section 1647 (1956) provides that the term of circuit court may be extended by the trial judge. The pertinent part of this Code section is as follows:

“And in all cases where, in the judgment of any judge or chancellor, the business of any circuit or chancery court may for any cause make it advantageous, or proper, so to do, such judge or chancellor may continue any term of court then in session by an order entered on the minutes of the court for such time as such judge or chancellor may determine. * * * ”

This Court has heretofore considered several cases in which orders were entered by the trial judge after the regular term of court had expired, and a majority of the Members of this Court are of the opinion that the issue has been settled, adversely to the claim of appellee.

We upheld an order of the Circuit Court of Wayne County in the case of Perry v. State, 154 Miss. 459, 122 So. 744 (1929). The order entered in that case was in the following language:

"Tuesday January 22nd, 1929, It now appearing unto the Honorable J. D. Fatheree, Judge of the circuit court for the 10th Judicial District, of Mississippi, the business of the January 1929, term of circuit court of Wayne County, Mississippi, now being held because of the heavy docket of said court makes it advantageous and proper to continue said term for one week longer than the regular term, that is to say said regular term in the judgment of the said J. D. Fatheree, for the above reasons should be and is hereby ordered extended and continued for one week from the time fixed by law, for the expiration of the regular term, the clerk is hereby ordered to spread this order on the Minutes of the court, and the officers are hereby directed to draw jurors for said week, and summons such jurors for service January 28th, at nine o’clock A.M.” 154 Miss. at 463, 122 So. at 745.

The order was spread upon the minutes of the court during the regular term, and on appeal this Court said:

“The order of January 22d, which was a day of the regular term fixed by law, was made and entered under the authority of the last clause of section 988, Code of 1906. * * * ” 154 Miss. at 464, 122 So. at 745.

The Court then said:

“An extended term of court, therefore, is not a special term; it becomes simply a part of the regular term fixed by law. An extended term of court must be for a definite time-, the statute so provides. The extension here involved ivas for a definite time — one week. * * * ” (Emphasis supplied.) 154 Miss. at 465, 122 So. at 745.

In the case of Watson v. State, 166 Miss. 194, 146 So. 122 (1933), the trial judge entered an order at a special term of court stating that the court was then in session and the business of the court required that it be continued; that it was advantageous and proper to extend the court term into a third week in order to dispose of the volume of business. On appeal to this Court, it was contended that the statutory law (§ 732, Miss. Code 1930) authorizing an extended term of court as an extension of a regular term of court had no application to a special term of court called for a stated term. This Court held, however, that a special term of court could be extended as well as a regular term. On the other hand, this Court pointed out:

“In support of the ground of objection that there were no signed minutes of the special term showing an order extending said term, and therefore the said term expired at midnight, Saturday, March 5, 1932, the appellant offered as a witness the circuit clerk, the custodian of the minutes of the court, and by him identified the minute-book, and particularly page 239 thereof, which he identified as the purported minutes of the court for Thursday, March 3, 1932, and as containing an order of the court extending the special term of court for one week. The appellant offered in evidence pages 224 to 243, inclusive, of this minute book, which purported to be the entire minutes of the special term of two weeks, including the minutes of Thursday, March 3, Friday, March 4, and Saturday, March 5, 1932, and the clerk of the court then offered to testify that the minutes of these last-mentioned three days were not signed by the judge. An objection was interposed to this testimony, on the ground that the minutes were the best evidence of the fact. This objection was sustained, and thereupon the appellant again offered and read into the record page 243 of the minutes containing the following recitation: ‘It is now ordered that court adjourn until Monday morning, March 7th, 1932, at nine o’clock.’ Under this recitation there was a blank space under which appeared the words ‘Circuit Judge,’ but no signature of the judge appeared in the space above these words, or on this page.” 166 Miss. at 208-209, 146 So. at 125-126.

The Court quoted from Mississippi Code 1930 section 750, and said:

“The provision of this section that 'on the last day of the term the minutes shall be drawn up, read, and signed * * * before the adj ournment of the court’ is mandatory, and requires that the minutes must be drawn up and signed before the expiration of the time fixed by law, or by the order calling a special term shall have expired. In view of the mandatory provision of this statute, there is no right or authority in a presiding judge to sign the minutes of his court after the term has expired by operation of law and is in vacation.” 166 Miss. at 210, 146 So. at 126.

Following the above-quotation, it was said:

“A writing or entry on a book provided for recording the minutes of the proceedings of the courts of this state does not become a part of the court’s minutes until such tentative minutes are read and signed by the presiding judge. The only power of a circuit judge or chancellor to extend a term of court, regular or special, is found in section 732, Code 1930, which authorizes the extension of any term of court then in session, by an order entered on the minutes of the court. This necessarily means that the order extending a term of court must be entered on the minutes while the court is still in session, that is, upon minutes signed by the judge before the expiration of the term proposed to be extended. So, in the case at bar, if, in fact, no order extending the term of court was entered on minutes which were signed by the presiding judge before the expiration of the term, as fixed by the original order calling the term, the attempted extension was ineffective, and the term of court ended at midnight of Saturday, March 5, 1932, and the trial of appellant during the following week was a nullity.” (Emphasis supplied.) 166 Miss. at 211, 146 So. at 126-127.

It is true that Mississippi Code Annotated section 1670 (1956) permits the correction of a mistake, miscalculation or misrecital of any sum of money, quantity of any thing, or of any names in the minutes of the court where there shall be among the records of the proceedings in a suit, any verdict, bond, bill, note, or other writing of the like nature or kind, or docket or other memo-randa by the judge or chancellor, whereby such judgment or decree may be safely amended, the judge may correct the record. But, we are of the opinion that the judge cannot go back to a former term of court and enter an order extending the term. It is apparent, not only from the previous opinion, in cases from this Court, but from the language of the statute (Mississippi Code Annotated section 1647, 1956) that the extended term of court and order must be spread upon the minutes of the court “then in session” extending the term of the court “for such time as such judge or chancellor may determine”. The term required to be fixed by a judge must be a definite term,, for a definite time.

There are good reasons why the law requires the court to be held at stated terms. Mississippi Constitution 1890, section 24, requires that every person shall have a remedy by due course of law without delay. The circuit court is required to be held in each county at least twice in each year. Mississippi Const. 1890 § 158. And the terms of circuit court are fixed by law. See Miss. Code Ann. § 1394 et seq., (1956). The circuit court has “all the powers belonging to a court of oyer and terminer and general jail delivery.” Mississippi Code Ann. § 1428 (1956). The words “oyer and ter-miner” simply mean “stated term”, “periodical session.” They are derived from the ancient Royal requirements that judges of the High Court of Justice in the various counties of England be held at stated ses•sions. The Royal commission to hold a general assize were issued twice a year. (See “assize” Encyc. Britannica, Vol. 2 at p. 560, 14th Ed., 1939; “assize” and “assizes”, Bouvier’s Law Dictionary, Vol. 1, pp. 267-268, 3rd Ed. 1914.) The reason stated terms were important then, and now, is so that citizens may have proper process, returnable to a stated term. An extention of a term of court, therefore, must be extended for a stated length of time.

The appellee in the case now before the Court contends that the trial court has, as of December 30, 1965, entered an order nunc pro tunc correcting the record so as to reflect his intention to spread upon the minutes an order extending the term of court on August 14,1964, so as to correct the order of that date adjourning the court until nine o’ clock A.M., Monday. The ap-pellee has attached affidavits of the circuit judge and the clerk to his motion to supplement the record. We are of the opinion, however, that an order cannot be entered nunc pro tunc so as to extend a term of court after the regular term of court as fixed by the Legislature has expired.

In support of this conclusion, we call attention to the following cases which have influenced our decision.

In the case of Jackson v. Gordon, 194 Miss. 268, 11 So.2d 901 (1943), this Court said:

“Appellee argues that the action of the trial judge in signing the minutes at the end of an invalid extended term should be considered as a correction of the minutes nunc pro tunc, and as an authority which he should be allowed to exercise in vacation. This contention is definitely refuted in the Watson case, supra, wherein it was said: ‘In view of the mandatory provision of this statute (Sec. 750, Code 1930), there is no right or authority in a presiding judge to sign the minutes of his court after the term has expired by operation of law and is in vacation.’ (166 Miss. 194, 146 So. 126.)”' 194 Miss. at 273, 11 So.2d at 902.

In the case of Beard v. McLain, 117 Miss. 316, 78 So. 184 (1918), where a chancellor attempted to adjourn his special term of court called for June 1916 until August, this Court said:

“Did the chancellor retain control and jurisdiction over the minutes and orders of court rendered at the special June, 1916, term of court, to the extent of authorizing him to set aside, at the August meeting of the court, a decree theretofore rendered at the June term, dismissing this cause? This question, thus sharply and directly presented, must be answered in the negative. Unquestionably, the decree rendered at the June term, dismissing the amended bill and taxing the complainant with costs, was a final decree. * * * In adjourning the special term, the chancellor undertook to adjourn his court until the second Monday in August, 1916. * * * It is settled law that:

“ ‘AH final decrees made in term time remain in the breast of the chancellor until the adjournment, and may be amended or vacated at any time during the term, but not afterwards.’ Ex parte Stanfield, 98 Miss. 214, 53 South. 538.” 117 Miss. at 319-320, 78 So. at 185.

# Hí ‡ H* *

“It is a matter of common observation that important litigated cases sometimes stand for 'trial about the end of a regular term of court, and that frequently the court is in the midst of the trial of an important murder case, or other case of importance, requiring additional time, and the statute, as amended, confers the power upon the circuit judge or chancellor to continue in session by an order entered on the minutes; but it is contemplated that in this order the judge shall designate the time, and this time may be such length of time as the judge or chancellor 'may determine.’ In the case before us the chancellor did not enter an order designating any length of time required for completing the business of the special June term, and, in reality, it does not appear that the court had any further business to transact at the special June term. It follows from what we have said that the decree of the chancellor reinstating this cause was a nullity; and, the reinstatement being void, there was no cause to be tried upon the merits.” 117 Miss. at 322-323, 78 So. at 186.

In the case of Evans v. King-Peoples Auto Company, 135 Miss. 194, 99 So. 758 (1924), a judgment was entered against the sureties and principal for the amount of a debt, and an automobile was condemned to be sold to pay the debt; the court then adjourned for the term. Thereafter, at the March term, the surety filed a motion to set aside and vacate the judgment rendered at the September term, and asked the court to enter a corrected judgment. The motion was taken under advisement by the circuit judge, and on the 16th day of January 1923, the circuit judge entered an order on the minutes attempting to sustain the motion and cited in his order that it was a mistake, and that the judgment actually entered was not the judgment of the court, and should not have been entered by the clerk, and then entered in lieu thereof a judgment restoring the automobile to the sheriff. Thereafter at the following September term, the King-Peoples Auto Company filed a motion to set aside and vacate the order by the court at the January term, and this motion was sustained by the court, the original judgment entered at the September term was restored, and from this last judgment, this case was appealed to this Court. On appeal, this Court said:

“There is nothing in the record to show that the court intended to enter any other judgment at the time when the judgment was rendered than the one it did enter. There was no showing made of any kind that there was any error of any kind by the court, or any misunderstanding of the judgment to be entered by the clerk other than the recital in the judge’s order of January 16, 1923, about 1 Yz years after the rendition of the judgment, and in our opinion this is not a case which warrants the judge in setting aside a judgment rendered during the term, after the expiration of the term, on the ground of mistake or error in rendering the judgment. The record should show wherein the judgment entered was not the judgment which was actually pronounced by the court on the verdict of the jury. Consequently the judge did not err in setting aside this vacation order and reinstating the original judgment.” 135 Miss. at 201, 99 So. at 759.

In the case of Rainwater v. Rainwater, 239 Miss. 154, 119 So.2d 610 (1960), where a complainant filed a bill to cancel clouds on the title to realty, the Chancery Court of Wayne County entered a decree adverse to complainant and complainant appealed. The Supreme Court pointed out that where a chancery court sustained a demurrer to a bill seeking to remove a cloud upon title to land at the October 1955 term at a time when complainant was in the courtroom and was represented by an attorney, but no request was made by complainant for leave to amend or for an extension of time therefor, the term of court then in session adjourned. Thereafter, the January 1956 term convened and no amendment was filed, no counsel appeared for complainant, and for that reason, the case was continued to the April 1956 term without an amendment having been made. On April 30, 1956, the chancery court entered a decree specifically providing that the bill should be dismissed with prejudice. On September 8, 1958, complainant filed a second bill to cancel the cloud on the title to the same land, and on February 18, 1959, complainant filed a motion to correct the decree in the first suit (filed October 1955) to show that dismissal was without prejudice, instead of with prejudice. We held that the chancery court properly refused to amend the decree, and properly held that the decree was res judicata. Quoting from Griffith’s Mississippi Chancery Practice, section 622, pages 670-671 (2d Ed. 1950), this Court said:

“If a general demurrer going to the substance and merits of the bill be sustained and there is no provision in the decree allowing an amendment to the bill the decree is final, the cause stands dismissed on the merits and it is a bar to a subsequent suit, not only on the merits as pleaded but of all that might properly have been pleaded in that cause. It is not the duty of the court to offer leave to amend when a demurrer is sustained. If desired such leave must be asked for and an order obtained granting it, and unless such an order is obtained during the term the case is disposed of and the decree sustaining the demurrer will become a final decree dismissing the bill although the decree does not in terms direct this to be done.” 239 Miss. at 160-161, 119 So.2d at 613.

Moreover, we are of the opinion that the minutes of the court cannot be changed by parol testimony, except as provided for in Mississippi Code Annotated section 1670 (1956). In the case of Steverson v. McLeod Lumber Company, 120 Miss. 65, 81 So. 788 (1919), a motion was made to quash a writ of execution and vacate a default judgment on the ground that it was rendered on what purported to be the first day of a regular term of the circuit court, when there could not have been a regular term begun and held on such date. The Court said:

“The parol testimony, however, attempted to be introduced in evidence by the appellant was inadmissible, because it was an attempt by parol testimony to contradict the minutes of the court, the attempt being in this case to contradict the minutes of the court which show that the court was begun on the 18th day (third Monday), of November, by showing as a matter of fact that the term was begun on the fourth day (first Monday) of November. This exact question was presented to the court in the case of Jones v. Williams, 62 Miss. 183. In the Jones Case the effort was to contradict by parol testimony the minutes of the court to show the day of the adj ournment of the court, instead of the day of the opening of court. In the Jones Case the court said:

“ ‘The settled doctrine seems to be that the evidence proposed to vary the date shown by the record is not admissible (citing authorities). 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.’ ” 120 Miss. at 81, 81 So. 789.

This Court then said:

“Since the law provides that the regu-ular November term of the court of Forrest county must convene on the first Monday thereof, it follows that no regular term of this court could be convened on the third Monday of November except as provided by section 989, Code of 1906, and that a court begun on this date was not a legal court, and therefore its judgments and orders were void, because the court was held at an unauthorized time.”

The general law on this subject seems to be well-settled, as shown by the textwriter in 37 Am.Jur., Motions, Rules, and Orders, section 30, at pages 513-514 (1941), wherein it is said:

“Nunc Pro Tunc. — The power of courts to adopt the practice of entering orders, judgments, and decrees, nunc pro tunc is recognized in all jurisdictions. It is many times necessary for the attainment of justice, and, when properly exercised, should be favored. Thus, an entry nunc pro tunc of an order of change of venue at a terra subsequent to that in which the order was made is proper in a case where the omission of the entry at the proper term was due to negligence of the clerk. * * * There can be no doubt that such an entry may operate so as to save proceedings which have been had before it is made, but where no proceedings have been had and the jurisdiction of the court over the subject has been withdrawn in the meantime, a court has no power to make a nunc pro tunc order. If the court has omitted to make an order which it might or ought to have made, it cannot, at a subsequent term, be made nunc pro tunc.”

See also: Reynolds v. Cropsey, 241 N.Y. 389, 150 N.E. 303 (1925); 21 C.J.S. Courts § 152a at p. 236 c.; § 152c at p. 240 (1940).

We have reached the conclusion that the order of the circuit court dated August 14, 1964, did not extend the circuit court of the First Judicial District of Hinds County, Mississippi, then in session, and we hold the nunc pro tunc order entered by the trial court on December 30, 1965, did not serve to extend the term of court as of August 14, 1964, and the order entered on August 19, 1964, was entered in vacation.

We are now therefore confronted with the validity of an order entered by the circuit court of August 19, 1964 (in vacation) for the sum of $6,004 in favor of the appellee, Walter F. Jordy. What effect did this order have upon the judgment entered at the regular term of the court?

In the case of Hyde Construction Company, Inc. v. Highway Materials Company, 248 Miss. 564, 159 So.2d 170, 162 So.2d 856 (1963), certain suits were joined together and default judgments were entered against Hyde Construction Company and motions were made by appellant to set the judgments aside, but the court did not enter an order setting the judgments aside until vacation. The Supreme Court held that an order entered by the trial court in vacation served to sustain the motion to set aside a default judgment, and to grant a new trial, and to continue the case for final hearing to the next term of court. This ruling was based upon the amendment to Mississippi Code Annotated section 1519 (1964) by Chapter 297, Laws of 1962, permitting the trial court to pass upon motions and demurrers in vacation, and that the case then was continued by law for determination at the next regular term of court.

In the instant case, the motion to set aside the judgment was made and argued in term time, but the order setting aside the judgment was not entered until after the regular term. We are of the opinion that since the court had authority to pass upon motions to set aside the judgment in vacation that the order entered by the court, dated August 19, 1964, served to set aside the original judgment, but that the matter was then continued by law until the next regular term. Thus, it has been continued from term to term and is now a pending matter in the Circuit Court of the First Judicial District of Hinds County, Mississippi. The case must therefore be reversed and remanded.

Reversed and remanded.

JONES, PATTERSON, INZER and ROBERTSON, JJ., concur. ETHRIDGE, C. J., and GILLESPIE, BRADY and SMITH, JJ., dissent.