The order was proper. In Arrington v. Conroy , 17 Ark. 101, 104, it was held that a Court may at any time, without the aid of a statute, make its record speak the truth; and parol evidence was admitted to show what the judgment in fact was. To the same effect in that State. (See Martin v. Bank of State , 20 Ark. 336; 4 Eng. 185; 19 Ark. 178; McKnight v. Strong , 25 Ark. 214.) In Weed v. Weed , 25 Conn. 340, 341, the point was urged that the judgment could not be amended after the adjournment of the term during which it was entered; and in support of the position was cited 3 Black. Com. 407; 1 Tidd, 648. The position was overruled by the Court, and parol evidence wasadmitted to show what judgment was pronounced, and the judgment was corrected according to the truth, the Court (p. 349) using the following language: " It is often the case that the Court announces in open Court the decision it has made, without furnishing the Clerk with any writing upon the subject. Were the latter to make a mistake in entering up the judgment, the injured party would be remediless, unless the mistake could be corrected upon the testimony of the Judge who made the decision, and the counsel and others who heard it announced." Again: " Whether there was a mistake in the record was a question of fact for the Court below, to be established as any other fact in a Court of justice, by proper evidence." * * * " Amendments may be had after the adjournment of the term, though formerly the rule was otherwise." (Coke L. 260 a. ) The Clerk may amend the judgment so as to conform the entry to the decision. (Smith v. Cox, 7 Rob., N.Y. 477.)
In New York the rule is well settled: First, that a judgment may be amended after the expiration of the term; second, and upon motion, affidavits, or parol evidence. (See the authorities collated, Tillinghast & Shearman's Practice, Vol. 2, pp. 1056, 1057.) And the rule has been carried to the extent of permitting a special term of the Supreme Court, from which an appeal lies to the general term, to amend the judgment of the general term. (Bailey v. Brown, 3 E. D. Smith, 66; see, also, Mahon v. Perkins , 35 Ga.; Johnson v. Bank, etc., 2 Duval, 521; Sparrow v. Strong, 2 Nevada, 362; Jenkins v. Long , 23 Ind. 460; Barron v. Blair , 12 Ind. 371; Thrasher v. Tyack , 15 Wis.; Frink v. Frink , 43 N.H. 508; Commonwealth v. Winston, 5 Rand. 546; 6 Shepley, Me. 183; 5 Iredell, 203; 1 Green. 195; 1 Humphreys, 19, 380; 1 Scammon, 122.) Amendment allowed after error brought (9 Porter, 252; 2 Ashmead, 90; 2 Howard, U.S. 263; Balch v. Shaw, 7 Cushing, 282; Fay v. Wenzel, 8 Cushing, 305.)
There is no limit as to the time within which an amendment can be made. (Graves v. Fulton, 7 How. Miss. 592; Walker v. Walker, 3 Harrington, 502.) The power of the Court to amend its record was carried further than this case requires in Gomez v. The United States, 23 How.
Hollister & Smith v. The Judges of the District Court of Lucas County, 8 Ohio, N. S., 201, was a case wherea mandamus issued to compel the Judges of the District Court to correct the record: Held, that every Court, in the exercise of its supervisory and protecting charge over its records, and the papers belonging to its files, has the power to direct the Clerk to correct not only clerical errors, but such errors as may arise from any fraudulent or improper alteration or mutilation of its files or records; and for such purpose may hear evidence and act on the proof; and it is not essential that the Judges act on their personal knowledge of the error.
In California, the practice of amending a judgment more than five months after the expiration of the term at which it was rendered, so as to make it speak the truth, was upheld in People v. Pablo de la Guerra , 43 Cal. 225, and this upon parol evidence. To the same effect is Vance v. Pena , 36 Cal. 328; Rowland v. Kreyenhagen , 24 Cal. 52; and Black v. Shaw , 20 Cal. 68.
OPINION By the Court:
The order appealed from was lately affirmed here on the ground that it was not supported by a statement on appeal. The fact has since been suggested at the bar that this defect was cured by a stipulation between the counsel which was not called to our attention. We take this occasion to say that it is the duty of counsel to see that the copies of the transcript intended for the members of the Court literally conform to the transcript filed in the office of the Clerk. In the great majority of cases we never see the transcript filed in the Clerk's office, but depend entirely upon the copies sent to the consultation room for the use of the members of the Court. The latter are expected to be accurate in every respect, and unless their accuracy be assured, serious mistakes are liable to ensue.
Whatever conflict may be found (and it is certainly far from inconsiderable) between the authorities as to the right and duty of the trial Court to correct its records, in order to make them conform to the truth, and so prevent them from being turned into instruments of injustice, we think that it must be conceded that under no system of jurisprudence recognized among civilized people has it ever been permitted that a party who has by the mere misprision of the Clerk obtained against his adversary the entry of a judgment never, in fact, pronounced or rendered by the Court, should, while substantially admitting the fact of the mistake, retain its fruits.
The cases out of which controversies upon the subject have arisen are cases in which the judgment had in point of fact been rendered by the error of the trial Court, or in which the fact of the mistake or misprision of the Clerk was controverted. It is argued, and with much force, that there must be some point in the course of judicial proceedings at which the rights of the parties litigant become absolutely fixed and placed beyond challenge, and that, unless this point is to be found in the entry of final judgment in the cause, it is not to be hoped for elsewhere. Much stress is usually laid upon the danger of permitting a reagitation of matters which it is the very purpose of the judgment to definitely and finally determine. But where, as here, there is no real controversy upon the fact that the judgment is a mere misprision, no such difficulties can arise. We have looked in vain amid the numerous affidavits of counsel and parties, upon which the motion to correct the entry in question is resisted, for a substantial denial of the fact that in the entry of this judgment a mistake of a grave character--amounting here to about seven times the number of acres of land really in controversy--had intervened. The Court below was satisfied--it could not have been otherwise under the circumstances--that the judgment, as actually pronounced, had never been entered by its Clerk, and we would but accomplish a flagrant and obvious injustice should we disturb the conclusion at which it arrived or set aside the order it made.
Motion to set aside the order of affirmance denied.