Opinion
June Term, 1820.
1. A record is deemed in law authentic beyond all contradiction, and when regularly certified by the proper officer it is conclusive upon the plea of nul tiel record.
2. But 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 fact 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 the clerk will be heard in support of such motion.
3. But, by HALL, 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 of 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 Daniel, J., at April Term, 1819, of HALIFAX, in which a verdict for a large sum of money had been rendered for the plaintiff. A rule had been granted on the plaintiff to show cause why there should not be a new trial, returnable immediately; and the counsel of Rodman 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 argued at a very late hour in the night, but no decision was made until Sunday morning, when the judge declared that he would not grant a new trial, and the clerk made the following entry on the trial docket: "On argument 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 from appealing to the Supreme Court by the decision not being made in term-time, moved for and (72) obtained a rule on the plaintiff to show 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 showed cause and the rule was discharged, and an appeal was taken to this Court.
Gaston for the plaintiff.
Seawell and Mordecai for Rodman.
A record is a memorial of a court of justice, which the (75) 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 has not in reality become such according to the forms of law. The certificate of the clerk as to the truth of a record would have been conclusive upon the issue of nul tiel 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 clerk after the expiration of the term, and that the judgment was, in fact, pronounced by the judge after the right to do so had ceased. This is known to be frequently done and for the purpose 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 his records after the term, were allowed to bind men's rights and property to any extent. Whereas few 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 Slocumb v. Anderson, 4 N.C. 77, 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 was held to be a nullity, (76) 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, be annulled and expunged.
Lord Coke says that "records, being the rolls or memorials of the judges, import in themselves such incontrolable verity and credit that they admit of no proof or averment to the contrary. Insomuch that they are to be tried only by themselves, for otherwise there would be no end of controversies. But during the term wherein any judicial act is done the roll is alterable in that term, as the judges shall direct. When the term is past then the record admitteth of no alteration or averment or proof that it is false." Co. Lit., 260, a; 4 Rep., 52. 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 court 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, I 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 his 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-time; and that as he did wrong in making the entry, he and not we may correct it by expunging from the record that which really never belonged (77) 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 a new 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. His better way is to expunge from the record book any entry that was made after the expiration of the term.