
    Barringer vs Booker.
    Opinion delivered February 15, 1896.
    
      i. Amendment of Judgment After Term■ — Notice to Adverse Party.
    
    After the expiration of the term at which the judgment wa rendered, the court amended it by a nunc pro tunc entry witl out motion and notice to the adverse party as required by 3909 of Mansfields Digest. Held, That correct practice require notice to the adverse party, or his attorney of the motion 1 make such correction, butprocoeding under $ 5083 of Mansfielc Digest this court will not reverse the cause for such era unless it be shown that the substantial rights of appellant hai been injuriously affected by such proceeding.
    
      
      2. Record. — Recital Cannot be Changed by Oral Testimony.
    
    The solemn declaration of the record cannot be overcome by oral testimony tending to show that the trial Judge had set aside and vacated the original judgment in Chambers and not in open court and failed and neglected to have the order entered of record.
    Appeal from the United states Court for the Southern District.
    C. B. Kilgore, Judge.
    Suit by D. E. Booker against J. L. Barringer. Judg-nent for plaintiff. Defendant appeals.
    Affirmed.
    Appellee recovered a judgment before the United states Commissioner at Ardmore against appellant for the um of $100.00 and costs, from which judgment an appeal yas taken to the United States Court in the Indian Territory, 'bird judicial division. On October 16, 1894, judgment was endered in that court, omitting the formal parts as follows: It is ordered, adjudged, and decreed that the judgment ppealed from in the above numbered and styled cause be fiirmed, defendant and appellant paying the costs of this ppeal. To all of which defendant and appellant excepted. ” . motion for a new trial was made, but is not set out in the jcord, and on November 20, 1894, was overruled, excep-ons allowed and defendant given 60 days in which to file 11 of exceptions. On March 23, 1895, the judgment of ctober 16th, 1894 was amended, whereby it ordered that The plaintiff, D. E. Booker, do have and recover of the de-ndant, J. L. Barringer, the sum of one hundred dollars, Bith interest thereon at the rate of six per cent, per annum Bom said 9th day of May 1894, and costs, for all of which Bb execution issue, ” and directed that said judgment be entered nunc pro tunc. A motion to set aside this amended judgment was made, upen the ground — First, that the same was rendered and taken wholly without notice, and without written motion filed in the case; second, that said order and judgment were taken after the original judgment, entered on the 16th day of October, 1894, had been vacated and set aside by the trial judge, in chambers.
    
      J. W. Hoclcer and B. D. Davidson, for appellant.
    
      Stewart Dennee, for appellee.
   Lewis J.

The bill of exceptions, duly reserved, and filed within proper time, presents for consideration the ques tions whether the court erred in amending the original judg ment after the expiration of the term at which it was render ed, by a nunc pro tunc entry without motion and notice to the adverse party, and whether it erred in refusing to per mit the admission of evidence to show that the Judge who tried the case had set aside the original judgment, and had failed and neglected to have the order granting a new trial entered of record. At the time of the amendment of the original judgment chapter eighty-eight of Mansfields Digest of the Laws of Arkansas was in force the Indian Territory, Section 8909 of this chapter provides: “The court in whicl a judgment or final order has been rendered or made, shal have power after the expiration of the term, to vacate oi modify said judgment or order * * * Third. For mis prisions of the clerk.” §3910 of this act provides; “Pro ceedings to correct misprisions of the clerk shall be bj motion upon reasonable notice to the adverse party or hi: attorney in the action.” The decisions of the Supreme Court of Arkansas are not entirely free from conflict in thi construction of the provisions of the statute quoted. Ai amendment of a judgment entry such as was made in thi: case is clearly the correction of a clerical misprision, and'we think under these statutes, that correct practice required notice to the adverse party or his attorney of the motion to make such correction. This is the view taken- by the Supreme Court of Kentucky of like statutory provisions. Seiler vs Bank, (Ky) 5 S. W. 536. Our power to reverse this judgment is defined entirely by special statutes of Arkansas. § 5083 thereof declares; “The court must in every stage of an action disregard every error in the proceedings which does not effect the substantial rights of the adverse party; and no judgment shall be reversed or effected by reason of such error or defect. ” We regard this statute as most wise and just, and we are disposed to construe it, not narrowly, but broadly. Under § 3909, above quoted, the power is conferred to correct a judgment after the expiration of the term. Motion and notice to the adverse party are the prescribed procedure to that end in the case of clerical misprision. The failure to give such notice is a defect in the proceedings for which the judgment cannot be reversed or effected. Unless the substantial rights of the party be affected by such defect. In ¡his case, the original judgment, in terms, affirmed the judg-nent of the Commissioners Court, which was a part of the record necessary to give the trial court jurisdiction. To iorrect the original, then, — not in any wise to alter or vary ts terms, but to make it technically formal and complete,— ■equired no extraneous proof-, but simply an inspection of the luthenticated record upon which the jurisdiction of the trial iourt rested. The lack of notice complained of could not, by ,he remotest possibility, have affected the rights of the ap-)ellant injuriously. The action of the trial court therefore, n this particular, though, in our judgment, not .free from srror, does not involve reversible error.

Adverse party should have notice of motion to amend judgment.

Cause will not be reversed, unless substantial rights are affected.

Upon the second point presented, we deem it neces-ary to say only that the record disclosed that, at the term at rhich the case was tried and the original judgment entered, a motion for a new trial was filed, overruled, and exceptions allowed, and defendant given 60 days to file bill of exceptions. We do not think that this solemn declaration of the record could be overcome by oral testimony tending to show that the trial judge in chambers, and not in open court, had set aside and vacated the original judgment, and had failed and neglected to have the order entered of record, there appearing no record nor memorandum of such order.

Recitals of blc°ófttraaFct-testimony.

Other questions presented will not be considered, for the reason that the bill of exceptions in which they are reserved was not filed within apt time. The judgment will be affirmed.

Springer, C. J., concurs.  