Austin v. Rodman, 8 N.C. 71, 1 Hawks 71 (1820)

June 1820 · Supreme Court of North Carolina
8 N.C. 71, 1 Hawks 71
Austin v. Rodman

Austin v. Rodman.

From Halifax.

A tccovvI is deemed in law authentic beyond all contradiction; anil, when regularly certified by the proper officer, it is conclusive upon the pier of mil llel record.

Out where a Clerk made an entry, by order of the Judge of the Court, -in the record of a cause the day after term, and, at the next succeeding’term, a motion was made to strike the same out: held, that such entry is, in fa'ct, no part of the record, and that the Court should order it to be annulled and expunged : held, also, that the affidavits of the party and lite Clerk will be heard in support of such motion.

But, by IIait. Judge, although such entry is, in fact, no part of the record, yet, if it appear upon the record duly certified by the Clerk, it is conclusive; and no proof can be heard against it, nor can the Court order any alteration in it. As, however, the Clerk wrongfully made it, he may expunge it, and restore the record to the truth; and, if he will not, but issues process on it, he will act upon it at his peril.

A suit pending between the parties was tried before Barde:. J. at April term, 11119, in which a verdict for a large suns of money had been rendered for the Plaintiff. A rule hud been granted on the Plaintiff to shew cause why there should not be a new trial, returnable immediately ,* and the counsel of Bod-man urged his Honor several times in Court to hear the argument, but it pleased him to defer it from time to time, until late on Saturday evening, and he then said that he would hear it at his chamber on Saturday night. Accordingly, the counsel on both sides and the Defendant attended the Judge, and the rule was argued at a very late hour in the night, but no decision was made until Sunday morning, when the Judge declared that lie would not grant a new trial, and the Clerk made the following entry on the trial docket: “ On argument, <e new trial refused,” and judgment was entered. At October term following, the Defendant, making these facts appear by the affidavit of himself and the Clerk, and swearing also to merits, and that he had been prevented *72from appealing’ to the Supreme Court by the decision not being made in term time, moved for and obtained a rule on the Plaintiff to shew cause why so much of the record as went to discharge the former rule for a new trial should not be expunged, so as to leave the cause standing upon the rule for the new trial. And this latter rule was returnable to March term, 1820, when the Plaintiff shewed cause, and the rule was discharged, and an appeal was taken to this Court.

Gaston, for the Plaintiff.

The record is now perfect, and cannot be altered. It is not permitted to a Judge to alter or erase any part of a judgment, after tiie term, whereof it is entered.* The Clerks, not the Judges, are keepers .of tiie records: they are bound by bond and oath to keep them truly; and this Court cannot order any alteration j for no earthly power can rightfully compel the Clerk to deface what hath once become a record.

To prevent the mischiefs which may result from the misprisions of Clerks, statutes of amendment and jeo fails have been passed. By 14 Ed. 3, mistakes of a syllable or letter in process may be amended. 8t. 8, Hen. G, mispri-sions may be amended, to avoid errors assigned for erasures and interlineations. St. 32, Hen. 8, 18 Eliz. 21 Jac. 1, after venlicts, and in order to sustain judgments thereon, certain errors shall not be fatal. St. 16 and 17, c. 2, after writs of error are sued out, certain omissions of form may be supplied in order to prevent reversal of judgment. But none of the statutes allow an alteration of the record in a substantial part5 and, under the statutes, no further amendment can be made than is.expressly allowed by them, and only where there is something to amend by.* At Common Law, amendments cannot be made after term.† In modera times, amendments have been more liberally made; but never, except in affirmance *73of judgments.* And parol evidence will not be received +o vitiate a record.†

It is in violation of every principle of evidence to permit a record to be impeached by parol evidence. In the nature of all proof, there must be something which is final; which not only need not be proved itself, but allows not of proof to the contrary. Such is a record in our law. To permit it to be expunged, erased in part or in whole, on motion and on parol evidence, is to make it yield this preference, and is, in effect, to abolish the rule, which gives absolute verity to a record. But if it can be done in any case, it cannot upon the proof now offered. What is the proof? Rodman’s own affidavit! which is to do away a judgment, and, with the- motion founded on it, operate as a writ of error. As to that of the. Clerk, it cannot be- received. If the act done be wrong, the affidavit of the very agent cannot be admissible to shew it. Surely hé shall not be beard to prove himself guilty of tho turpitude of making a false record, of forging “the solemn “ memorial of a Court of Justice,” whoso rolls are confided to his custody, iie stands upon the same ground as a Juror, whose affidavit will never be received to impeach his verdict.‡ But policy still more forbids the admission of the evidence of a Clerk than a Juror, because, the temptation to tamper with them is so great. Hence, odicers arc never permitted to be examined' as to the matter of a record.§ The case rests, therefore, upon Rodman's own evidence j and if the motion be allowed upon that, the precedent will be. dangerous, and few judgments will stand against the affidavit of the parties. The Plaintiff cannot, contradict the afiidatit, because the counsel, of course, will not, and the judge ought not; and there are no other persons who could know.

*74Every thing ought to be presumed in favor of the regu-iarity of the proceeding. It is complete on the face of it; and the Court will infer that all was done by consent; ^ jU(jgT decided during the term, though the record was made up afterwards. The practice now complained, of has the sanction of universal usage : it is the common practice of all the Judges, adopted for the convenience of counsel and suitors, and ought to be supported, and would justify entering up the judgment mine pro tunc, even if the present one can be vacated. Judgments signed in vacation, as of the preceding term, when consistent with the rules of proceeding, are perfectly regular.* In Slocumb v. Anderson,† the parties waived an inquiry into the regularity of the proceeding, and submitted certain points only to the Court upon which an opinion was given. But even there, no motion was made to expunge, alter, or deface a record.

Sea-well and Mordecai, for Hodman*

The. affidavits must be taken to be true. There is no counter-affidavit, nor any conflicting evidence. We know that a record is indisputable; and that is the very reason we now apply for redress. For we say, this is no record, though it appears to be one. The cases cited on the other side are all of matters done or performed during the term. But the question here is, whether the Clerk can make a false record, by addition or diminution, in vacation, so as to bind the rights of others ? The danger lies on this, instead of the other side; and there will be no check upon the errors of a Judge, or tiic corruption of a clerk, if the truth cannot be siicwn and the record corrected. It is not an attempt to give evidence against a record upon a question arising under it on a trial. It is only an endeavor to restore its true character to it, and make it, in fact, the record of what was done by the Court. Unless this can be done, the party is effectually ousted of his appeal; because *75fee departs, with the. end of the Court, iu fact as well as in legal implication. But as the Defendant lias merits, which must now be presumed, and has been defeated of his appeal, the Court will aid him, if possible: and this can certainly he done now upon the common principle of nunc pro tunc. * Slocumb v. Anderson is a much stronger case than this; for there every thing was done by consent.

Taylor, Chief-Justice.

A record is a memorial of a Court of Justice. which the law deems authentic above all contradiction. Its purity ought, therefore, to be guarded with anxious vigilance, lest any entry should go forth to the. public as the act of a Court, which lias not in reality become such according to the forms of law. The certificate of the Clerk, as to tiie truth of a record, would have been conclusive upon the issue of nul lid record, and parol evidence to prove that it had not regularly become such, would have been inadmissible. Yet, when the inquiry is now made as to the manner in which this apparent record was made up, it appears, most'satisfactorily, that the. entry was made by the Cleric after die expiration of the term, and that the judgment vas, in fact, pronounced by the Judge after the right to do so had ceased. This is known to be frequently done, and for the purposes of justice and the convenience of suitors, under the best intentions on the part of the Judge, but still it cannot stand the test of legal examination. The effect of such a precedent might be most mischievous, if the entry of a clerk, made upon liis records after the term, were allowed to bind men’s rights and property to any extent.' "Whereas lew inconveniences can ensue from making the record speak the truth, provided an inquiry be instituted recently after the entry complained of has been made. In the case of Slocumb v. Anderson, there was the consent of all parties, and the intent of the. transaction was perfectly fair; but inasmuch as the judgment was entered up in vacation, it *76was ¡ie}(| t0 be a nullity, and the entry on the record ordered to be vacated. That case is an authority for a like order in the present one. The judgment must be reversed, and the entry of the clerk, made after term, bo annulled and expunged.

Haii, Judge.

Lord Coke says, that ‘"records, being “ the rolls 01* memorials of the Judges, import in them- “ selves such ¡«controllable verity and credit, that .they “ admit of no proof or averment to the contrary. Inso- “ much that they are to he tried only by themselves ; for, “ otherwise, there would be Do end of controversies. But “ during the term wherein any judicial act is done, the “ roll is glterable in that term, as the Judges shall direct. “ When the term is past, then the record ndmitteth of no “ alteration, or averment or proof that it is false.”* If this be the legal definition of a record, the entry here, that on argument, a new trial was refused,” and the judgment of the Cour.t consequent thereupon being made on Sunday, after the expiration of the term, as the affidavits state is the fact, forms no part of the record of the suit between the parties. If it should be so considered, any entry made in vacation must be considered in the same light; which, in the words of Coke, would give rise to innumerable controversies: and where a Clerk certifies entries so made, he certifies that as a record, which, according to the same authority, is not a record. This is an answer to the affidavits. But a record is certified by the Clerk in due form, and it is required that we should direct the Clerk to alter it upon the strength of those affidavits. That, 1 think, we cannot do. The record appears to be perfect; and it can only be tried by itself. But we can advise the Clerk, that if he made it up as he himself states in ids affidavit he did, it is no record; that he is to consider nothing as the record between the parties but what was entered in term lime; and that as he did wrong *77in making the entry, he, and not we, may correct it by expunging from the record that which really never belonged to it. "When this alteration shall be made, the truth will be seen, and the rule for a new trial will remain undisposed of. But if the entry made on Sunday be considered as disposing of that rule, it may also be considered as an authority for him to issue execution on the judgment obtained, which, surely, cannot be; for the rule for anew trial was obtained in term time, and is a record, and the discharge of it was entered in vacation, and was not a record; and, therefore, the question,.whether there shall be a new trial, still remains open. If the Clerk should issue execution, he will do it at his peril. Mis better way is to expunge from the record book any entry that was made after the expiration of the term. '

Murphey, Judge, sat in the place of Judge Hexder-son, who had been of counsel in the cause at the Bar. He concurred in the opinion given by the Chiee-Justice.

So that the decision of the Court below upon the last rule obtained by the Defendant at October term, 18 3 9, was reversed; and this Court ordered the said entry of the Clerk, made after the expiration of April term, 1819, to be annulled and expunged.