State ex rel. Kirkland v. Mangum, 50 N.C. 313, 5 Jones 313 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 313, 5 Jones 313

State on the relation of JOHN U. KIRKLAND v. E. G. MANGUM.

Where the parties to a suit agreed to submit their case to arbitrators, and that the award should be a rule of Court, but only the first part of which agreement was entered of record, it was -Heft? that the Court, entertainingthe suit, had the power to amend the record nunc pro tune, so as to make it show that the award was to be a rule of Court.

MotioN to amend a record, heard before SauNDEes, J..,. at the last Spring Term of Orange Superior Court.

A suit was pending in the County Court of Orange county between the plaintiff and defendant, which was agreed to be referred to two arbitrators, and an entry of such agreement was made of record in the suit. The arbitrators acted on the case, and having made up an award, it was moved that the -order of reference be amended by adding, nunc pro timo, the words “ and their award to be a rule of court.” The evidence was contained in the statement of Mr. Norwood, who says that he was counsel for the defendant, and Mr. Nash for the plaintiff; that the parties agreed to submit the matters in controversy between them to their two counsel, and that the award should be a rule of court. The latter part of the agreement was not entered in the order of reference. Upon this evidence, the amendment prayed for was allowed, from which the defendant appealed to the Superior Court.

ITis Honor in the Superior Court affirmed the judgment of the Court below, and the defendant appealed to this Court

Graham, for the plaintiff.

Bailey and Fowle, for the defendant.

Battle, J.

It cannot be denied that every court of record has the power to amend its own record, at any time, by inserting what has been omitted, or striking out what has been erroneously inserted, so as to make it speak the exact truth in relation to its own proceedings; Phillipse v. Higdon, Bus. Rep. 380 ; Pendleton v. Pendleton, 2 Jones’ Rep. 135 ; Mayo v. Whitson, Ibid. 231. This is an important power, which it is the duty of every court to exercise upon every occasion which requires it, because every record imports absolute verity, and no person can allege or prove anything to the contrary. In the exercise of this power, the Court may act upon such testimony as may bo satisfactory to it, and upon an appeal from its action, this Court is confined to the question, whether it liad the power, and cannot enquire how it has exorcised it; Pendleton v. Pendleton, and Mayo v. Whitson, ubi supra. These propositions are not denied by the defendant’s counsel, but lie contends that the matter, which the County Court ordered to be spread upon its record by way of amendment, was matter of private agreement between the parties to the suit, which they never authorised to be entered of record, and that, therefore, the Court had no power to order it to be inserted as an amendment. The argument is founded upon ■a misapprehension of what the County Court did undertake to do, which was to have entered upon the record, the whole of what the parties agreed should be so entered. In showing this, the Court called to its aid the testimony of John W. Norwood, esq., the counsel of one of the parties to the cause, and ordered the record to be amended, only so far as that testimony satisfied it of the truth of what the parties agreed should be entered. The Court had power, undoubtedly, to hear the testimony and to decide what it proved, and with its decision we bave no right to interefere ; but if we had, we cannot say that we should have come to a different conclusion upon the effect of the testimony.

Pee CubiaM, The judgment of the Court below, is affirmed.