
    CHARLES GAGNON v. THE UNITED STATES AND THE SIOUX AND CHEYENNE INDIANS.
    [Indian Depredations, 10380.
    Decided December 1, 1902.]
    
      On the Proofs.
    
    The claimant, averring that he was naturalized in a District Court in Nebraska and that the record thereof can not be found, applies to the same court to have a record of his naturalization entered nvne pro tunc thirty-three years after the event. There is no record or part of record or memorandum of any description showing the naturalization referred to. The fact is shown entirely by parol testimony. The court allows the application and orders that the judgment be entered at large on the journal of the court nunc pro .tunc as of the date aforesaid.
    I.When it appears that a decree of naturalization, which in 1897 is ordered to be entered and spread upon the record as of 1863, was based entirely upon oral testimony, it must be held that the action of the court was not authorized by law, but was in legal effect an original order which could not be entered as of a prior date.
    II.During the term the record is in the breast of the court. After the term, where justice requires it, courts will allow amendments notwithstanding that the record is made up and the term passed if the suit is pending.
    III.To justify an amendment nuñc pro tunc there must be something to amend by. Where there is no record or memorandum of any kind to show that a former order existed a court is without jurisdiction to enter a judgment, or order, nunc -pro tunc as of a prior term.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. Indians of the Sioux and Cheyenne tribes took propertj' from the firm of Hosford & Gagnon, in the Territory of Wyoming, February, 1806, of the aggregate value of $15,500. The depredation was without just cause or provocation on the, part of the owner or agent in charge.
    II. One-half of the property so taken W'as owned by James W. Hosford, for which lie had maintained suit under No. 3912 in this court and recovered judgment in the sum of $7,750, vdiich judgment has been satisfied. The other half of the property so taken, amounting to $7,750, was owned.by the claimant, Charles Gagnon, which half has not been returned or paid for.
    III. The Indians by vdiom the property v-as taken were members of a tribe in amity with the United States' at the date of the depredation.
    IV. The claimant was born in Canada, a subject of the British Crown. He declared his intention to become a citizen of the United States before the District Court of Woodbury County, Iowa, March 12, 1858. It is claimed that he was admitted to become a citizen of the United States by the District Court of the first judicial district of the Territory of Nebraska, within and for the county of Richardson, on the 25th day of September, 1863. The judge and clerk of said Territorial court died before the proceedings were had in March, 1897, for the nvnopro tuna order. To establish his citizenship the claimant relies exclusively upon the following-record, made by the District Court for the first judicial district of the State of Nebraska (successor of said District Court of the Territory), on application made March 29, 1897:
    “Be it remembered that at a term of the District Court holden in and for said county, in Falls City therein, on the 29th day of March, in the year of our Lord one thousand eight hundred and ninety-seven, the following among other proceedings were had, to wit:
    “In re Charles Gagnon, application and motion, nunc pro tunc, to supply record of naturalization as a citizen of the United States.
    “This cause came on to be heard on motion of Charles Gagnon for an order nunc pro tunc to supply omission in the record wherein the judgment of naturalization of the said Charles Gagnon as a citizen of the United States pronounced by this court at its September term, A. D. 1863, was through negligence or inadvertence of the clerk unrecorded in the journal of said county, or if recorded the same has been lost or destroyed; and it appearing to the court by competent evidence that the said Charles Gagnon made application to this court at its September term, 1863, to be naturalized as a citizen of the United States, and having produced his certificate of his declaration of intention to become a citizen of the United States, made before the clerk of the District Court for Woodbury County, in the State of Iowa, on March 12th, 1858, and that he thereupon produced in open court his witnesses, to wit, E. H. Johnson and John C. Blair, and after hearing the testimony of said witnesses as to the qualification of said Charles Gagnon to become a citizen of the United States, and the court, being satisfied in the premises, granted an order admitting said Gagnon to such citizenship and administered to him the oath of allegiance required by law, and abjuration of all allegiance to Queen Victoria, Queen " England, of whom he was formerly a subject.
    ‘ ‘ And it having been made to appear further to this court that said judgment of naturalization was never recorded, and if recorded the record is lost and can not be found in the records of this court, and it being legal and proper that said record should be supplied, and this court being willing that said error or omission should be corrected, it is ordered and adjudged that said judgment so rendered b}T this court at its September term, 1863, be entered at large on the journal of this court as of the date when it should have been entered, to wit, on the 25th day of September, 1863, and that the clerk issue to the said Charles Gagnon the proper certificate of naturalization as provided by law, and that this applicant pay the costs of this proceeding.
    “ JNO.. S. Stull,
    “ Judge District Court.
    
    “March 30th, 1891.
    “ÜNited. States oe America,
    “ The Territon/ of .Nebraska, Richardson Cov/nty, ss:
    
    “Beit remembered that at a term of the District Court holden in and for said county, in Falls City therein, on the', 25th day of September, in the year of our Lord one thousand eight hundred and sixty-three, was present the Honorable E. S. Dundy, sole presiding judge, John P. Welty, sheriff of said county, and George Vanderventer, clerk of said court, when the following, among other proceedings, were had, to wit: Charles Gagnon, a native of Canada, and at present residing within said Territory, appeared in open court and made application to be admitted to become a citizen of theUnited States, and it appearing .to the satisfaction of the court that he had declared oh oath before a clerk of the District Court of Wood-bury County, Iowa, a court of record having common-law jurisdiction, and using- a seal, two years at least before his admission, that it was bona fide his intention to become a citizen of the United States, and to renounce forever all allegiance to any foreign prince, potentate, State, or sovereignty whatsoever, and particular!}' to Queen Victoria, Queen of England, of "whom he was heretofoi’e a subject; and said applicant having declared on oath before this court that he will support the Constitution of the United States, and that he doth absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, State, or sovereignty whatsoever, and particularly to the power above named, the court being satisfied that said applicant has resided within the United States for the term of five years next preceding his admission, without being at any time during the said five years out of the territory of the United States, and within this State one year at least; and it further appearing to the satisfaction of this court that during that time he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same;
    “ Whereupon it is ordered by the court that the said Charles Gagnon be, and he is hereby, admitted to become a citizen of the United States.
    “In testimony whereof I, George Vanderventer, clerk of the court aforesaid, have hereunto set my hand and affixed the seal of said court, at my office in Falls City, in said county, September 25th, 1863.
    [seal.] “ George VaNderveNter,
    “ Cleric of the District Court.
    
    “State of Nebrasea,
    
      “Richardson County, ss:
    
    “I, Chas. L. Mettz, clerk of the District Court in and for the above-named county and State, do hereby certify that the within and foregoing is a true and perfect copy of the order and decree of the court rendered at the March, A. D. 1897, term of the District Court, to wit, on the 30th day of March, 1897,- as the same appears on the court records of said county, to wit, on Journal 10, pages 218, 219, and 220.
    ‘ ‘ Witness my official hand and seal this the 3rd day of April, A. D. 1897.
    [seal.] “Chas. L. Mettz,
    “ Cleric of the District Court.
    
    
      “State op Nebraska,
    “ Richardson County, ns:
    
    “I, Jno. S. Stull, judge of the District Court of the first judicial district of the State of Nebraska, do hereby certify that the above-named Charles L. Mettz is. the clerk of said court in and for said Richardson County, State of Nebraska, and as such clerk he is the custodian of the records and seal of said court; that said Richardson County is a part of said first judicial district of the State of Nebraska; that the above and' foregoing authentication is in due form and in all respects in accordance with the laws of the State of Nebraska.
    “Witness my hand this 12th day of Mhy, 1897.
    “Jno. S. Stull,
    
      “Judge of the District Court of the “1st Judicial District of the State of NebrashaJ
    
    Prior to said application, to wit, on March 19, 1897, the following notice was served on the Attorney-General:
    “March 19, 1897.
    “Hon. Joseph McKenna.
    “Sir: In further response to the letter of February 10, 1897, by Charles W. Russell, Acting Assistant Attorney-General in charge of Indian depredation claims, we now advise you that application will be made to the District Court of Richardson County, Nebraska, on the twenty-ninth day of March, 1897, on behalf of Charles Gagnon, for restoration of certain lost records relative to the naturalization of said Gagnon.
    “You will please take notice of this proceeding, as it is the purpose of the claimant in causes Nos. 3912, 3913, 10379, 10380, and 10382, Indian depredation, in the Court of Claims, to present duly authenticated copies of said restored record (should it bo restored) as evidence on behalf of claimants.
    “Very respectfully,
    “Charles and Wi. B-. King.”
    V. A search of the records of the District Court of Richardson County, Nebr., at Falls City, made by a special attorney of the Department of Justice, and admitted ats evidence - by agreement of parties, discloses the following facts:
    From the organization of the court down "to and including the year 1862, the records are complete and include an appearance docket, a trial calendar upon which is docketed eveiy case that was tried, and upon which also is shown the minutes made by the judge at the time the cases were heard. There are also journals of the. court in which are spread at length the orders entered in the various cases tried. Subsequent to the year 1863 there are also appearance dockets, trial dockets, and journals, kept in practically the same form as at present, showing the action of the court, as in those prior to 1863. The appearance docket covering the year 1863 is one which was begun prior to that jmar, and which covers the year 1862. It also covers the year 1864 and several years subsquent thereto. This appearance docket, however, shows but the entry of five cases during the year 1863. The cases at that time were docketed three upon a page, and there are numerous blank pages after the docketing of the last five cases for 1863, before the docketing of the first case in 1864. The first trial docket made up after the year 1862 has upon it each of the five cases appearing upon the appearance docket for 1863, and also shows foidy-seven other cases docketed during the year 1863, but not appearing upon the appearance docket. Some of these show, however, that they are petitions for new trial, eases appealed from justice court, motions for confirmation of sheriff’s sales, transfers of cases from other counties, and other proceedings which an inspection of the appearance docket shows it evidently was not the custom to place upon the appearance docket. Deducting matters of this nature from the full number of cases docketed upon the trial docket which had been filed in 1863 leaves such a number of cases as should have appeared upon the appearance docket as could be docketed upon the pages left blank in the appearance docket between the cases docketed in 1863 and those docketed in 1864.
    VI. There is no record or memorandum or other paper of any kind in the records of said court or among the files thereof showing or relating to an application by Charles Gagnon for naturalization before said District Court, nor was there an}r such paper in the records of said court on the 29th and 30th daj^s of March, 1897, when the proceedings for restoration of the record of naturalization were taken, nor does it appear that a certificate of naturalization was ever issued or delivered to the claimant.
    VII. Upon the foregoing findings of fact the court finds the ultimate fact, so far as it is a question of fact, that the claimant, Charles Gagnon, was not at the time of the depreciation á citizen of the United States. ’ '
    
      
      Mr. William K. Harvey and Mr. William B. King for the claimants:
    It has been held both in the State courts and in the United States courts that naturalization proceedings regular on their face can not bo attacked. In The People v. Pease (30 Barb. 588, 604) the court said:
    “The judge at the trial also suffered the party to attack the certificate of naturalization by evidence aliunde, and to show that it was procured by fraud; that its recitals were false,- and that the party was not entitled to be naturalized. The certificate was the legal evidence of the judgment of a court of competent jurisdiction collaterally in question in the action. It was final and conclusive. It imported absolute verity, and could not, if valid on its face, be thus impeached in this action. When alienage is in issue, the judgment of the court admitting the alien to become a citizen is conclusive evidence upon that point. {Ritchie v. Putnam, 13 Wend., 524.) A record of naturalization can not be contradicted by extrinsic proof that no declaration of intention had in truth been made. {Banks v. Walker, 3 Barb. Oh. Hep., 438.) Like any other judgment, it is complete evidence of its own validity. {SprattY. Spratt, 4 Pet., 393.)”
    In the case of The People v. Me Gowan (77 Ill., 644, 646) the people offered to prove that McGowan had not declared his intention to become a citizen prior to the date of his naturalization, and other facts tending to show that he was not then qualified to be a citizen. This evidence was excluded by the court.
    In the State v. IFoeflinger (35 Wis., 393, 400) the court held that the record of naturalization was conclusive upon the question in a collateral proceeding. “It was the record of a judgment and imports absolute verity.”
    This doctrine has been carried to such an extent that United States courts have refused to cancel a certificate of naturalization because it had been obtained by fraud.
    In United States v. Gleason (78 Fed. Rep., 396), in the Circuit Coui’t for the eastern district of New York, an attempt was made to set aside a certificate of naturalization on the ground that it had been obtained upon false representations made to the court, but the bill was dismissed on the ground that the naturalization in the superior court of the city of New York must be held conclusive.
    
      The court, in its opinion, says, referring to the allegation that false statements had been made in procuring the decree of naturalization—
    “But, whatever the fact was, the administration of the oaths and issuing of the certificate showed the satisfaction of the court as to the. requirements, constituting a judgment of admission to citizenship, with the force of such a judgment upon the status of the applicant.
    “In Gamphell v. Gordon (6 Cranch, 176), Washington, J., said:
    “ ‘But if the oath be administered and nothing appears tp the contrary, it must be presumed that the court before whom the oath was taken was satisfied as to the character of the applicant. The oath, when taken, confers upon him the rights of a citizen, and amounts to a judgment of the court for his admission to those rights.’”
    The court quotes the paragraph from Spratt v. Spratt (4 Pet., 392, supra), and continues:
    “And in JEx pa/rte Gregg (2 Curt., 98 Fed. Cas., No. 3380) Mr. Justice Curtis, upon a question as to the court, said:
    “ ‘The importance and value of this privilege of citizenship, which is conclusively and finally bestowed by the act of the ' court having jurisdiction, “should prevent allowing any requirement of an act of Congress from having its full weight,” in an application for this great right, so as to make an absolute and unimpeachable grant of it.’
    “The conclusive effect everywhere of such judgments affecting the status of persons- is alluded to in Hilton v. Guyot (159 U. S., 113, at p. 167).” (78 Fed. Rep., 398.)
    An appeal was taken by the United States to the Circuit Court of Appeals, second circuit, where the decision of the lower court was affirmed. (90 Fed. Rep., 778.)
    (See also The State v. 'McDonald, 24 Minn., 48; In re Ghr¿stern, 43 N. Y. Super. Ct. — 11 Jones & Spencer — 523; Golemarís Gase, 15 Blatchford, 406, 6 Fed. Cases, No. 2980.)
    
      In re Wight, Petitioner, the Supreme Court held, quoting the syllabus—
    “When it is found by a Circuit Court of the United States that the clerk has failed to put in the record an order which was made at the next preceding term of the court, remanding a case to the District Court, the Circuit Court may direct such an order to be entered nune pro tunc." (134 U. S., 136.)
    
      The court discusses quite elaborately the right of a court to make nunc pro tune orders.
    After citing various cases, the court says:
    “ We are forced to the conclusion that the action of the Circuit Court in making the order for a nunc pro tune i*ecord, which showed that the case had been remanded from, that court to the District Court prior to the time when the sentence was passed upon the prisoner, was a legitimate exercise', of power.” {Ibid., 146.)
    In the case of (s'onzalesv. Cunn ingham (164 U. S., 612, 623) the court directed entry of a nunc pro. time record of the arraignment and pleas of defendant. The Supreme Court held that such entries were good, citing In re- 'Wight (134 IT. S., 156) and United States v. Virgil (10 Wall., 423).
    It was expressly held that courts have power to cause mine pro time entries to be made at any time after the term. (Decision of Circuit Court of Appeals in Lincoln Wail Banh v. Berry, 66 Fed. Hep., 887, 888.)
    “Courts possess the inherent authority to enter judgments mine pro tunc, and time will not bar its exercise.” {Fuller v. Stebbins, 49 Iowa, 377; Kaufman v. .Shain, 111 Cal., 16, 19.)
    In Batch v. Shaw was brought in question the validity of a nunc pro tune entry, made in 1838, of an order passed in 1824. The court says:
    “The case turns, therefore, upon the question whether the record was rightfully amended so that the tenant can maintain his title on that record.
    “There can be no doubt that it is competent for a court of record, under its general, inherent, and necessary authority", to correct the mistakes and supply the defect of its clerk or recording officer, so as to have the record conform to the actual facts and truth of the case, and that this may be done at any time, as well after as during the term, mine pro tune. (7 Cush., 282, 284.)”
    Lord .Denman, Ch. J., Queen’s Bench, says:
    “The power of the court to enter judgments nunc pro tunc does not in any respect depend upon Stat. 17 Car. 2, c. 8. It is a power at common law, and by the ancient practice of the court, to prevent an unjust prejudice to the suitor bjr the delay unavoidably arising from the act of court, and has been uniformly exercised, unless the delay is imputable to the laches of the party applying.” (Evans v. Rees, 12 Acl. and E., 167, 175.)
    In Van Etten v. Test (19 Neb., 725) the act of entering a judgment nune pro tune was sustained. ■
    The Supreme Court says:
    “Our first impression was that whatever might be the powers of the courts in this regard over their records during the term in which the transactions are supposed to have occurred, the record of which, or failure to make an}^ record of which, is the subject of amendment, yet when it was attempted to do this after an adjournment and at a subsequent term of the court, the powers of the court in making such changes in the records of the proceedings were limited .to those in which there remained written memoranda of some kind in the case, and among the files of the court, by which the record could be amended, if erroneous, or the proper entry could be supplied, if one had been omitted.
    ; ‘ We are satisfied, however, upon an examination of the authorities, that this restriction upon the power of the court does not exist.” {in re Wight, 131 U. S., 136, 113.)
    “Time will not bar its exercise.” {Fuller v. S>'tébbins, 19 Iowa, 377; People v. County Court, 9th Col. App., 41, 47; 47 Pac., 171.)
    In the case of the inhabitants of Lionerieh (18 Me., 183), the court says that if ‘ ‘ the recording officer has erred in making up a proper or full record, the court may in its discretion cause the record at any time to be amended or corrected so as to have it declare the whole truth. ” (Oclell v. Reynolds et al., Circuit Court of Appeals, 6th circuit, 70 Fed. Rep., 656, 659.)
    In Blythe v. llinciiey the court held that it was not the duty of counsel to see that proceedings in court are properly of record in the minutes. “This duty belongs to the officers of the court, and their default eta not be used to the prejudice of parties relying upon the integrity of official records.” (81 Fed. Rep., 228, 244.)
    In Whiting v. Equitable Life, etc. (60 Fed. Rep., 197, 200) the Circuit Court of Appeals says:
    “Even subsequent to the adjournment of the term the court could, upon application, correct the record so as to show the truth of what actually occurred, and repair any error or omission of its officers, upon proper application being made.”
    
      In Rugg v. Parker (7 Gray, 172) a record, was made mono fro tunc after tweffiy years; in Lawrence v. Richmond (1 J. and W., 211) after twenty-three years.
    “The court of common pleas, having the exclusive right and jurisdiction of the. matter, were the proper judges of the necessit3r and propriety of extending the record, and of the proofs and of the sufficiency of the proofs, upon which to proceed. Such a record, when made up, is conclusive until altei’ed or set aside by the same or some other court having jurisdiction, but it can not be drawn in question collaterally when such record is used or relied upon in support of a title.” (Balchy. Shaw, 7 Cush., 282, 281.)
    “We think'it clear, upon the authorities, that the court may make such amendment upon any competent legal evidence, and. that they are the proper judges as to the amount and kind of evidence requisite in each case to satisfy them what was the real order of the court, or the actual proceedings before it; what was the proper entry to be made on the docket, and how the record should bo extended.” {Finch v. Finch, 13 N H., 508, 515.)
    In the case, of Rugg v. Parker, a petition was presented to the court of common pleas at the September term, 1855, to order the clerk to complete the record, of a judgment rendered ly that court at the December term, 1835, the record of which judgment had remained incomplete because, in consequence of the utter insolvency of the defendant, the plaintiff had failed to furnish the clerk with the papers necessaiy for entering the judgment and complete the record thereof. The petitioner presented- two promissoiy notes purporting to bo the notes sued on, and called as a witness the attorne3r who made the writ, and took some other testimony upon the reason for the dela3r in furnishing the papers. The court ordered the record to lie completed as prayed for, to which order exceptions were taken. In passing upon this the Supreme Court of Massachusetts sa}Ts:
    “The court of common pleas undoubtedly had authority to complete their records in the action on the notes. {Balch v. /Shaw, 7 Cush., 282.) * * * Whether the court would order the completion of these records was a matter of judicial discretion; and the action of the court, within the limits of its authority, is not a subject of. exception. But if these exceptions were properly before us, we should overrule them, being of the opinion that they do not show that the order was wrongly made.” (7 Gray, 172.)
    
      In Doe v. Litherberry (4 McL., 442) there was brought in question the validity of a nunc pro tuno entry made -upon affidavit four 'years afterwards, showing appointment of guardian. Court held record good.
    It 'can not be questioned that the Nebraska District Court had jurisdiction to admit aliens to citizenship, it being a court of record, having common-law jurisdiction and a seal and clerk, as required by section 2165, Revised Statutes. Neither can it be questioned that it had jurisdiction over its own records. It therefore follows that the proceedings arc .not void and can not be here inquired into.
    
      Mr. Harry Peyton (with whom was Mr. Assistant Attorney-General Thompson.) for the defendants.
   Peelle, J.,

delivered the opinion of the court:

The question presented is, Was the claimant a citizen of' the United States at the date of the depredation complained of in February, 1866 ?

The claimant grounds his right to citizenship on the facts set forth in finding iv, which in brief are that he was born in Canada; declared his intention to become a citizen of the United States before the District Court of Woodbury County, Iowa, in March, 1858, and claims that thereafter on September 25,1863, he was admitted by the District Court of Richardson County, in the Territory of Nebraska, to become a citizen of the United States, but no record appears to have been made thereof.

Some thirty-three years thereafter, on the application and motion of the claimant before the District Court of said county for an order nunc pro tune to supply the record of his naturalization as a citizen- of the United States, on the ground that the judgment of naturalization “was through the negligence or inadvertence of the clerk unrecorded in the journal of said county, or if recorded the same has been lost or destroyed,” the court found that the claimant had been admitted to citizenship on September 25, 1863, and ordered that the judgment thereof be entered at large on the journal of the court mono pro 'tunc as of the date aforesaid.

The question of the claimant’s naturalization, as well as the existence of the record thereof, or of any memorandum paper pertaining thereto, as the basis for the court’s jurisdiction, is controverted.by the defendants, and in support of their contention they rely on the facts set forth in findings A' and at, which, in substance, are that the records of the District Court of the Territory of Nebraska for the year 1863, and prior and subsequent thereto, are now complete and intact, showingentries in sundry cases at the Ararious terms of said court during that period, but no record of any proceedings showing the naturalization of the claimant or of any application therefor.

That no memorandum or other paper of any kind was in the records of said court on the 29th and 30th of March, 1897; Avhen the proceedings for the restoration of the records of naturalization were taken, and that it does not appear either .in the court’s proceedings or otherwise, that a certificate of naturalization was ever issued or delivered to the claimant.

The issue thus made raises the question, Did the District Court of Richardson County, Nebr., in 1897, have jurisdiction to supply the alleged record of naturalization of September, 1863, by a mine pro tunc order?

If it did, then this court is bound thereby and the claimant, being a citizen at the date of the depredation, is entitled to recover the sum of $7,750 found due him as set forth in finding ii; otherwise citizenship being jurisdictional under the act of March 3, 1891 (26 Stat. L., 851), the claimant’s petition must be dismissed.

From the facts found it is clear that the nunc pro tunc order of 1897 supplying an unrecorded judgment of naturalization alleged to have been rendered in 1863 was based entirely upon oral testimony. The court’s records of 1863 are not only silent as to what was done, but no paper or memorandum of any kind was among the records or before the court in 1897 from which the court could infer that such a proceeding had been commenced. The proceedings in 1897 therefore were not to amend a defective or incomplete record of which there was some basis to show a mistake, but were to supply an alleged omitted record in a matter wherein the record and files of the court not only fail to show that anjr proceedings were had, but fail to shoAV that any such proceedings had been commenced.

Blackstone in his Commentaries (rol. 8, p. 407), in speaking of writs of error, says:

‘ ‘ Formerly the suitors were much perplexed bjT writs of error brought upon very slight or trivial grounds, as misspelling and other mistakes of the clerks, all which might be amended at common law, while all the proceedings were in paper, for they were then considered as only in fieri and therefore subject to the control of the courts. But when once the record was made up it was formerly held that by the common law no amendment could be permitted, unless within the very terms in which the judicial act as recorded was done; for during the term the record is in the breast of the court, but afterwards it admitted of no alteration. But now the courts are becoming more liberal and, where justice requires it, will allow of amendments at any term while the suit is depending, notwithstanding the record be made up and the term be passed. For they at present consider the proceedings as in fieri until judgment is given, and therefore that till then they have power to permit amendments by the common law; but when judgment is once given and enrolled, no amendment is permitted in any subsequent term.”

The origin and history of the general doctrine of amendments as outlined in that Commentary, page 408, are well stated in the case of Bilansky v. State of Minnesota (3 Minnesota, 427-429).

In that case, which was a capital one, the court said:

;‘If a jury is sworn according to law, or any other of the ■ordinary proceedings take place in the progress of the trial of a cause, and the clerk omits to record the fact, we see no reason \vh}T the record should not be made to conform to the truth, even after the term, when there exists no doubt about what the truth is. Every reason is in favor of such change being made; public justice demands it, as well for the punishment of the offender as for the protection of the accused, according as the nature of the proposed amendment may operate.”

Bishop on Criminal Law, section 1160, says:

“ When the term of the court has closed, it is too late to undo, at a subsequent term, what was done at the former term. A judgment of the court, for instance, can not then bo opened and modified or sot aside. Neither, it has been held, can the clerk at a subsequent term make an entiy of what truly transpired at the preceding term. But this refers to the power of the clerk, proceeding of his own motion. The court may order nunopro tuno entries, as they are called, to supply some'omission in the entry of what was done at the preceding term; yet this is a power the extent of which is limited and not easily defined. In general, mere clerical errors may be amended in this way. So of the mistake of the clerk in the name of the judge before whom the indictment was found.”

In the case of In re Wight (134 U. S., 136-144), the court, after quoting the above section, says:

“The present case comes within the clause of this section, which declares the power of the court to make mono pro tuno entiles to supply omissions in the record of what was done at the time of the proceedings. An extensive list of authorities is cited in the footnote of Mr. Bishop, and among those which ' support the power of the court to make a record of some matter which was done at a former term, of which the clerk has made no entry, the following cases directly affirm that proposition: Galloway, Administrator, v. McKeithen, 5 Ired. (Law), 12; Hyde v. Curling, 10 Mo., 374; State v. Clark, 18 Mo., 432; Nelson v. Barker, 3 McLean, 379, and Blansky v. The State of Minnesota, 3 Minnesota, 427.”

In the case of Hyde v. Curling (supra), which was a civil suit, it was held, as stated in the syllabus, that—

“A court has power to order entries of proceedings had by the court at a previous term to be made nunc pro inonc, but where the court has omitted to make an order which it might or ought to have made, it can not at a subsequent term be made mono pro tuncT

And in the case of Nelson v. Barker (supra), where an objection was made to the amendment on the ground that there was nothing to amend by, the court said:

“At common law the court could only give leave to amend when there was something to amend by, and anciently amendments were required to be made at the term at which the error occurred, but now an amendment may be made at any time before judgment, and in some cases after judgment.”

But that ruling appears to' be based on section 32 of the judiciary act of 1789, known as the statute of jeofailes and amendments of the United States now embodied in Revised Statutes, section 954.

So that tbe reliance by the claimant’s counsel on the case of In re Wight (supra) to support the doctrine that the court is not restricted to record evidence in amending its record after the term at which the proceedings were had does not appear to be well founded, as the court, citing section 954, saying, “ it is as liberal in the powers which it confers on the courts to make amendments as any of those enacted in more modern times,” adds that, “we are forced to the conclusion that the action of the Circuit Court in making the order for a wane pro tunc record, which showed that the case had been remanded from that court to the District Court prior to the timé when the sentence was passed upon the prisoner, was a legitimate exercise of power.”

It will thus be seen that the language in that opinion, saying in effect that the court is not restricted to record evidence in amending its record at a subsequent term, must be read in connection with section 954.

The Supreme Court of Indiana has been uniform in its holding that after the expiration of the term nune pro tunc enti’ies to amend .the. record of a proceeding at a prior term can only be made upon some record or memoradum paper or other minutes in the case from which it can be clearly shown what took place. (Boyd v. Blaisdell, 15 Ind., 73; Jenkins v. Long, 23 Ind., 460; Makepeace v. Lukens, 27 Ind., 437; Hamilton v. Burch, 28 Ind., 233; Miller v. Royce, 60 Ind., 189, and Schoonover v. Reed, 65 Ind., 313.)

In the last case cited the court, quoting from the case of Wilson v. Vance (55 Ind., 394), said:

“The office of a mine pro tunc entry is to make a record of what was previously done, but not then entered; not to make an order, now for then, but to. enter, now for then, an order previously made.”

That is to sajq the function of a nunc pro tunc entry is to enter now for then the order previously made and not to make an order now to supply the court’s omission to make one then.

To the same effect also are the decisions of the Supremo Court of Illinois. (Coughram v. Gutcheus, 18 Ill., 390, approved in 94 Ill., 525, and 165 Ill., 417.)

In the case of Balch v. Shaw (7 Cush., 282-284), in speaking of the power of the courts during and after the term to correct clerical errors, the court said:

“There can be no doubt that it is competent for a court of record, under its general, inherent, and necessary authority, to correct the mistakes and supply the defect of its clerk or recording officer, so as to have the record conform to the actual facts and truth of the case, and that this may be done at any time as well after as during the term, mine pro Pune. The length of time in this case, between the granting of the license and. making up the record, does not take away the right or jurisdiction of the court.”

But the court further said:

“This was not a case of want of jurisdiction, in which the record can not be amended, because, there being an omission to act, there is nothing to record; in such case the defect is not in the record, but in the action of the court.”

The converse of that appears to us to apply to the present case; that is to say, there was nothing before the court making the nunc pro tune entry to show that it was the entry of an order previously made. There was no record or memo-rándum of any kind before the court from which it could be inferred that the procedings for the naturalization of the claimant had taken place or had ever been commenced, and for that reason the court’s jurisdiction was wanting unless the omission of such record and paper can be supplied by the recollection of witnesses a generation thereafter.

Furthermore, the matter was not in the breast, of the court, for the judge who held the court in 1863, as well as the clerk thereof, had theretofore died.

The proposition that a record can not be amended after the term unless there is something in the record to amend bjr is supported by many cases, other than those cited, some of which are Lynch v. Reynolds, 6 Bush. (Ky.), 547; Shackleford v. Levy, 63 Miss., 128; Smith v. Hood, 25 Pa., 218; State ex rel. v. Prim, 61 Mo., 166, and many other cases which might be cited.

Such was the view of Bishop in regard to the manner of making amendments, for in his Criminal Procedure, section 1315, he says:

“The better way is believed to be to make, in the record of the term at which the amendment is offered, an entry to the effect that, whereas on inspection of the record of the preceding term an error therein appears, etc., it is considered that the same be corrected and amended, etc., setting out the amendment.’'

True, in the case of Balch v. Shaw (supra) it is said:

“It was further said in argument that th„ere was no sufficient material from which to make up the record. But the court of common pleas, having exclusive right and jurisdiction in the matter, were the proper judges of the necessity and propriety of extending the record, and of the proofs and of the sufficiency of the proofs txpon which to proceed.”

That was said with reference to the issue in that case, which was one of law, there being no question of fact in dispute, and that was that “ if the court should be of the opinion that there was a sufficient record of the order of the court of common pleas, made at the October term, 1824, to sell the demanded premises, judgment should be rendered for the tenant,” who was relying on the order then made to support his title acquired bjr purchase at the sale thereunder.

The court hold that there “was a sufficient record of the order of the court of common pleas” to sell the premises, and hence there was no question of jurisdiction; and the coxirt of common pleas having, as the court say, “the exclusive right and jurisdiction in the matter,” such eoiirt was the judge “of the proofs and of the sufficiency of the proofs ivponwhich to proceed."

In the case of Fay v. Wenzell (8 Cush., 315), which was a case of assumpsit on a promissory note, where the juiy returned a verdict for the plaintiff and the defendant moved for a new trial, as appears from a written motion filed in the case, no entry of the motion appeared on the docket, but there was an indorsement on the motion for a new trial made by the judge before whom the motion was argued, directing, in substance, that the motion should be overruled and judgment be entered upon the verdict, but no entry thereof was made on the docket. After the indorsement of the motion as aforesaid the case was continued from term to term.

The plaintiff contended that the entry was erroneous and had been made by mistake, and offered p'arol evidence thereof in addition to the written motion and the indorsement thereon, while the defendant insisted that the memorandum on the docket constituted the record of the proceedings in the case, and denied the authority of the court to alter and annul the record of the doings of the conrt at a former term, and also objected to the competency of the evidence offered by the plaintiff; but the presiding judge overruled the objections and received the evidence and entered on the docket the following order:

“And now it appearing to the court here that the entry on the docket at the December term, 1848, ‘verdict set aside, new trial granted,’ is erroneous and was made by mistake, and that no such order was ever made by the court, it is now ordered that the said minute be struck out and erased; and it also fui’ther appearing that the entry in the docket at the December, term, 1849, ‘judgment on the verdict’ is erroneous, and that the same ought to be arrested, it is ordered by the court here that the said minute be struck out and erased. And now at the present term of court it is ordered and determined by the court that the motion of the defendant for a new trial be overruled and disallowed, and that judgment be now entered on the verdict.”

On appeal, the court, among other things, said:

“ In the present case the court of common pleas had the power to order this amendment of the record. The amount and kind of evidence requisite to satisfy that court, as to what was the real order of the court and what was the proper entry on the docket or extended record, must rest with that court. Having the authority to correct their own record, it is to be presumed that any amendment of the record made by them will be in accordance with the facts.”

There it will be observed there were papers among the files and indorsements thereon which gave the court jurisdiction in the premises, and jurisdiction once acquired the court could admit such evidence, oral or otherwise, as it saw fit to ascertain the truth of the matter.

The claimant’s counsel abty contend, and cite numerous authorities to support their contention, that a court of record has the inherent right and power to make nunc pro tunc entries to correct mistakes so as to conform its record to the actual truth of past transactions; and that contention, in view of the numerous authorities, both of the Supreme Court of the United States and of the several States, can not be controverted. But the authorities cited by the claimant, as well as others we have examined, are all in cases where it appeared from the record that a cause was pending, and in many cases there was some memorandum, minute, or indorsement on the records or on the papers among the files sufficient to give the court jurisdiction to proceed; and where there is sufficient substance the record may be supplemented by oral testimony, but where there is a total absence of substance — i. e., no record, paper, or memorandum — from which it could be inferred that any such proceeding was even commenced, there is nothing to amend. Hence the alleged certificate of naturalization in this case purporting to be “an order mine pro tnne to supply omission in the records wherein the judgment of naturalization of the claimant as a citizen of the United States pronounced by the court at its September term, 1863, and which it is claimed was through negligence or inadvertence of the clerk unrecorded, or if recorded, lost or destroyed, is not conclusive and may properly be attacked in this court. (Thompson v. Whitman, 18 Wall., 457; Cole v. Cunningham, 133 U. S., 107; Simmons v. Saul, 138 U. S., 439, 448.)

While lapse of time in a proper case may not take away the right or jurisdiction of a court to make name fro tune entries to conform its record to the truth, it is an element to be considered in this case, where there is a total absence of any record showing that the claimant ever applied to become a citizen, and hence the name gyro tame entry was rather an original order made now for then than an entry made now for then of an order previously made.

In the case of Brown v. Coward (3 Hill, S. C.) where the clerk had made no entiy on the minutes of the court of a judgment in summary process, it was held that there was nothing on which a scire facias to revive could issue; nor would amotion to amend by entering judgment nunc gyro time he granted for the reason that there was no judgment to amend; that “where judicial proceedings are imperfect, the court to which they belong will amend them, as long as there is anything to.amend.” That language is applicable to the present case. There is no substance upon which to ground a right to amend, especially after the lapse of a generation.

Therefore the authorities cited bjr the claimant in support of the proposition that the certified copy of the record of naturalization of an alien, like any other record of a court, imports verity, are not- in point, for the reason that there was nothing in the record or among the files of the court to show that any such judgment had either been entered or ordered to be entered. There was nothing to amend — no mistake to correct.

No certificate of naturalization appears to have been issued to the claimant at the time he claims to have been naturalized, and hence the beginning of th e proceeding as well as the action of the' court rests solety in .the recollection of witnesses. Therefore, we arc not disposed to accept the certificate of the nunc jpro tunc judgment of naturalization as sufficient to establish the claimant’s citizenship, and his petition will accordingly be dismissed.

Howry, J., did not sit in this case and took no part in the decision.  