
    No. 24.
    George W. Short, plaintiff in error, vs. Ed. Kellogg & Co. defendants in error.
    [1.] The doctrine of amendments to records and judicial proceedings, in England and in this country, stated.
    [2.] This Court will not control the discretion of the Circuit Court, in refusing to allow a nunc pro tuno judgment of nonsuit, founded upon an entry on the Judge’s docket, and parol proof of what was ordered to be done, ton years having intervened.
    Motion, in Muscogee Superior Court. Decision by Judge Iverson, May Term, 1851.
    This was a motion to amend the minutes of the Court, by entering a judgment of non-suit, mine pro tunc, under the following state of facts:
    On the 7th day of Nov. 1840, George W. Short was arrested by the Sheriff, under a cci. sa. at the instance of Edward Kellogg & Co. and gave bond for his appearance at the next term of the Superior Court, to take the benefit of the “ Honest Debtor’s Act.” The papers were returned by the Sheriff, and no farther proceedings appear by the record to have been taken by the parties.
    At May Term, 1851, Short, by his counsel, moved the Court to amend the record, and enter a judgment of non-suit in said cause, nunc pro tunc, as of October Term, 1841, upon the following evidence: Upon the motion docket of said Court, in which the case of Kellogg § Co. vs. 'Short, was stated and regularly entered, at April Term, 1841, opposite the said case, was this entry and no other, “ Oct. Term, 1841 — non-suit.” It wras admitted by plaintiffs in ca. sa. that this entry was made at that term by Judge Wellborn, then presiding in said Court, and in his own handwriting. It farther appeared, that across the names of plaintiff and defendant in said case, lines were struck -with a pen, in the same manner as is usual for a Judge to do, when he strikes a case from’the docket, after awarding a non-suit ; and it was admitted that these lines were so struck with a pen by Judge Wellborn, at said October Term, 1841, when said cause was regularly in order for trial. It was not admitted that the Judge then and there awarded a non-suit. The minutes of the Court, at October Term, 1841, show no order or entry touching said case.
    The Court refused to grant the motion, and this decision is assigned as error.
    
      Other grounds of error were assigned, but were not considered and determined in the Supreme Court.
    B. Hill and H. Holt, for plaintiff in error.
    Jas. Johnson, for defendant in error.
   By the Court.

Lumpkin, J.

delivering the opinion.

Did the Court err in refusing permission to the defendant in ca. sa. to prove by parol, a judgment of non-suit in his favor, after the lapse of ten years, and have the same entered, nunc pro tunc ?

On no point, perhaps, is there a greater conflict and contrariety of decisions, than the allorvance of amendments to records and judicial proceedings. At the Common Law, no judgment was amendable after the term at which it was entered, (3 Black. Com. 407. 1 Bacon's Abr. tit. Amendment, G. p. 167. 2 Sellon’s Pr. 458,) and following the English rule, the Courts in Kentucky and Ohio have decided,' that a nunc pro tunc order cannot be made out at a subsequent term, nor can a nunc pro tunc order be founded upon parol proof of what was ordered to be done at the previous term. Ohio Cond. Rep. 168. Green vs. Dodge, Ibid, 638. 1 J. J. Marshall’s R. 365.

So in Mssissippi, it has been held, that the notes made by the Judge on the docket, constituted no part of the record, and were not evidence for any purpose, not even to authorize an amendment or correction to be made by the Judge himself, of his own proceedings ; that they were even more objectionable than parol evidence. Burney vs. Bryt, 1 How. Rep. 39. Orne, appellant, vs. Sullivan, 3 How. R. 161.

On the other hand, in The State vs. King, (5 Ired. Rep. 203,) Judge Griffin said, that the Supreme Court of North Carolina had so frequently had occasion to declare that the power resides in every Court to amend the entry on the minutes, or the record of its orders and judgments, nunc pro tunc, that he supposed the point would be made no more, and in Gallenary vs. McKeithen, (Ibid, 12,) it was held that a Court has a right to amend the records of any preceding term, by inserting what has been omitted, either by the act of the Court or of the Clerk, and that accordingly the County Court of Brunswick, at the December session, 1842, had a right to amend an omission in the record of the same Court, which had taken place at June Term, 1837, five years previously.

And between these extremes, there is every imaginable variety of adjudication.

Under these circumstances, we are unable to prescribe any definite rule of universal application, even in England, where it is stated that no amendments are allowed to be made in the process, pleadings and proceedings, only where the cause stood in paper, and before the judgment is given and enrolled. We meet, unquestionably, with some striking exceptions to the doctrine.

In Cogan vs. Elden et al. (1 Burr. 583,) Lord Mansfield presiding, the verdict was amended from the Judge's notes, and the affidavits of the Jurors who rendered it. Judgment against an executor de bonis propriis, wms amended by making it de bonis test, et si. non, &c. after writ of error brought mil tiel record pleaded, and argument in the Exchequer Chamber. Short vs. Coffin, Ex. 5. Burr. 2730. Dougl. 116. Postea amended by the Judge's notes after final judgment and lapse of two years. 3 Durnf. & East, 749. And for numerous cases of amendment of postea verdict, judgment, &c. by the Judge's notes, after error and joinder, see 2 Sellon's Pr. 408, ch. 9, §8, letter d.

And Mr. Tidd, in his excellent work on Practice, has laid this down on the clear doctrine of the Courts, in all cases of ordinary suits, (excluding fines and recoveries,) that judgments and records are allowed to be amended — 1st, where the case is within some Statute — or 2d, where there is something to amend by, “that is, where there is some memorial paper or other minute of the transactions in the case, from -which, what actually took place in the prior proceedings, can be clearly ascertained and known.” 1 Tidd's Pr. (9th ed. 1828,) 711, 712.

With this latitude of distinction, I am inclined to think, that had the motion in this case been made before me, I should have allowed the amendment, believing from all the testimony, that the purposes of justice would have been aided by it, especially, taking into the account the very loose manner in which records have been kept in this State. Still, we are unwilling to control the presiding Judge in the exercise of his discretion, in view of all the facts before him, and consequently affirm the judgment.  