Galloway v. McKeithen, 27 N.C. 12, 5 Ired. 12 (1844)

Dec. 1844 · Supreme Court of North Carolina

27 N.C. 12, 5 Ired. 12

NATHANIEL GALLOWAY, Adm’r. &c. vs. MOSES McKEITHEN.

A Court has a right to amend the records of any preceding term, by inserting what had been omitted either by the act of the Court or the Clerk.

A record, so amended, stands as if it had never been defective, or as if the entries had been made at the proper term.

The records of a Court, upon matters within its jurisdiction, when offered in evidence, cannot be impugned by counter evidence.

The cases of Bright v. Sugg, 4 Dev. 492; State v, Roberts, 2 Dev. & Bat. 540, and Reíd v. Kelly, 1 Dev. 313, cited and approved.

Appeal from an interlocutory order of the Superior Court of Law of Brunswick County, at Fall Term 1844, his Honor Judge Bailey presiding.

The case was this: At March Term, 1837, of Brunswick County Court, administration on the estate of J. Corbit, deceased, was granted to the plaintiff, Nathaniel Galloway. John McKeithen, who opposed it, took an appeal to the Superior Court. At June Term, 1837, of the Superior Court, it was ordered, that the administration should be granted to the said Nathaniel Galloway, and his wife Penina, on their giving bond in the penalty of $8000; and that a writ of procedendo issue to the County Court to carry this order into effect.

The writ was accordingly issued; and the records of the June Term, 1837, of the County Court shew, in their present form, that the letters of administration were ordered, and a bond taken, in obedience to the writ of procedendo. On the 5th of December, 1838, the plaintiffs issued their writ in this case in detinue against the defendants, returnable to Spring Term, 1839, of the Superior Court, to recover a slave, the property of the intestate, detained by the defendant subsequent to the death of the intestate. To this action the defendant pleaded non detinet. On the trial at Fall Term, 1844, the defendant objected to the plaintiffs’ recovery, because, as he alleged, they were not the administrators of Corbit at the date of the writ. The defendant, in support of this objection, produced in evidence the records of the County Court of Brunswick, at December Term, 1842, in which it is staled, that the said County Court, at June Term, 1837, omitted to comply with the writ of procedendo, which issued to it from the Superior Court, by extending the record ; and, on motion, it is then ordered by the Court that letters of administration issue to the plaintiffs and a bond be taken, nunc pro tunc, with K. Lang-don and Samuel Galloway as sureties ; and that the letters and bond should have relation and bear date, as of June Term 1837. The Judge thereupon non-suited the plaintiffs, and they appealed.

Strange for the plaintiffs.

W. Winslow for the defendants.

DaNiel, J.

We think that the Judge erred in non-suiting the plaintiffs. The County Court of Brunswick, at the December Session, 1842, had a right to amend any omission in the record of the same court, which had taken place at June Term 1837, by the act of the court or the clerk. And, when the record was thus amended, it stood as if it liad never been defective, or as if all the entries had been made and completed at the June Session of 1837; for the affidavits, motions and orders, which were made at the December Session 1842, were not, and ought not to have been, incorporated in the amended record of the session of June, 1837 — they were no part of it. Bright v. Sugg, 4 Dev. 492. State v. Roberts, 2 Dev. &. Bat. 540. It appears by the transcript, that the County Court, at their June Session in 1837, did take an administration bond of the plaintiffs in the penalty of $8000, with sureties approved by the said Court. We think, that the record of the June Session, 1837, of the County Court, did shew that the plaintiffs were appointed, gave bond and qualified as administrators of J. Corbit at that term.

The records of a Court, upon matters within its jurisdiction, when offered in evidence, cannot be impugned by counter evidence. Reid v Kelly, 1 Dev. 313.

The non-suit must be set aside and a new trial awarded.

Per Curiam, Judgment accordingly.