Creed v. . Marshall

BkowN, J. We must treat this proceeding as a motion in the cause to amend the judgment rendered by Judge Jones, and affirmed by this Court so as to include in it an adjudication as to the surrender of the “Big Mill,” etc., as contended by the defendant. Treating it as such, upon the record before us, we must affirm the order of Judge Lyon, from which the defendants appeal. There is no finding of facts set out in this record that Judge J ones ever rendered any such judgment and inadvertently failed to incorporate it in the written judgment signed by him. The case was brought to this Court on appeal, and no such error was assigned by the appellant. In fact, the form of the judgment as founded upon the issues was not contested. It is well settled that in any case where a judgment has been actually rendered, or decree signed, but not entered on the record, in consequence of accident or mistake or the neglect of the clerk, the court has power to order that the judgment be entered up nunc pro tunc, provided the fact of its rendition is satisfactorily established and no intervening rights are prejudiced. If the written judgment fails to incorporate the true sentence or judgment of the court, through inadvertence and in consequence of clerical errors or omissions, it may be completed by an order nunc pro tunc, or may be set'aside and the true and correct judgment entered nunc pro tunc. But the power to amend the judgment as entered cannot be used for the purpose of correcting errors or omissions of the court. No amendment can be allowed simply for the purpose of entering judgment which the court failed to render at the proper *398 time, or to change the judgment actually rendered to one which was not rendered. Such procedure cannot be allowed so as to enable the court to review and reverse its action in resjtect to what it formerly either refused or failed to do. 23 Oyc., 843. According to many authorities, the evidence to justify the entry of a judgment nunc pro tunc must be record evidence, or some entry, note, or memorandum from the records which shows in itself, without the aid of parol evidence, that the alleged judgment was rendered, and what were its character and terms; but other authorities hold that such entries nunc pro tunc may be ordered on any evidence that is satisfactory, whether it be parol or otherwise. The record does not disclose that the judge below failed to find any material fact or any fact which ought to have been found from the evidence adduced. He is the sole judge of the weight and credibility of the evidence, and his findings thereon are conclusive and are not reviewable by this Court. This has been settled by innumerable decisions. Stockton v. Mining Co., 144 N. C., 595; Norton v. McLaurin, 125 N. C., 185; Winburn v. Johnson, 95 N. C., 46; Sikes v. Weatherly, 110 N. C., 131; Lumber Co. v. Buhmann, 75 S. E., 1008. It has been held uniformly since the case of Heilig v. Stokes, 63 N. C., 612, that the Supreme Court has no power to pass upon issues of fact, and that, generally speaking, those questions of fact which are passed upon by the Superior Court judges are conclusive and binding upon this Court. It is further contended that his Honor should have submitted the issues of fact to the jury. We cannot concur with the learned counsel for the defendant. The issues of fact arise upon the pleadings, apd the issues arising upon the pleadings in this case were submitted to a jury and no exception taken to their form. All the rulings of the court below in submitting those issues to the jury were reviewed by this Court on appeal, and the judgment affirmed. A distinction between issues of fact and questions of fact has been pointed out by Judge Rodman in the Heilig case and approved in the opinion of Chief Justice Pearson in Keener v. Finger, 70 N. C., 42. *399 Many questions of fact must necessarily arise wbicb cannot be passed upon by a jury, sucb as amendments to tbe record, motions for injunction, vacating attachments, granting writs of assistance, and tbe like. This proceeding before Judge Lyon comes within this category, and bis Honor found tbe facts without tbe aid of a jury, and bis findings are binding upon us. We fail to see bow tbe defendant is greatly prejudiced if tbe facts be as found by bis Honor, that tbe “Big Mill” was surrendered to tbe defendant, and that tbe defendant has exercised acts of ownership over it. Tbe plaintiffs, upon tbe admissions and findings now set out in this record, cannot now gainsay tbe defendants’ right to sucb possession. Tbe costs of this appeal will be paid by tbe defendants. Tbe judgment of tbe Superior Court is Affirmed.