Simpson v. Talbot

79 S.W. 761, 72 Ark. 185, 1904 Ark. LEXIS 105

Opinion

Battle, J.

On the 24th of March, 1895, John H. Talbot & Co. brought suit, in-the Jefferson chancery court, against W. T. Simpson and others to foreclose a mortgage upon certain lands. A decree foreclosing the mortgage was rendered. After the expiration of the term at which it ,was rendered, the chancery court amended it so as to show the evidence upon which the cause was heard. The record fails to show that notice of the application for the amendment was given, or that any application was made, or that the parties-appeared at the time the decree was corrected. According to the amendment, all the evidence upon which the cause was heard and the decree was rendered does not appear in the record in this court.

The chancery court had the authority to amend the record of its decree at a subsequent term, so as to make it speak the truth, but it cannot do so without notice first given to the party against whom it is made. Martin v. State Bank, 20 Ark. 636; Alexander v. Stewart, 23 Ark. 18; King v. Clay, 34 Ark. 300. But, the record being silent, the presumption is that notice was given. Brownlee v. Davidson, 28 Neb. 788, 789.

The record here failing to show that it contains all the evidence upon which the cause was heard, the presumption is that the decree is correct. Casteel v. Casteel, 38 Ark. 477; Hershy v. Baer, 45 Ark. 240; Carpenter v. Ellenbrook. 58 Ark. 134, 23 S. W. 792.

Decree affirmed.