Shaw v. Watson

McCay, Judge. 1. Where the judge of a court of record passes a judgment it is ordinarily final, so faj as he is concerned. Necessary rules of order require that he shall not be asked, even during the term, to reopen the matter for new discussion and new decis [203] ion; and when the term is past, the general rule is unquestioned that the judgment is final. But, during the term, all action by the judge is open to be reheard, at the discretion of the court: Kerr on Actions, 30-33; 81 Law Library. His regular judgment, though solemnly made, though on the minutes, may be vacated for good cause, or the judge may, by order then made, open it for rehearing at a subsequent term. The turning point is, does the court adjourn with the judgment undisturbed ? See Kerr on Actions, as cited above. In this case, a motion was made to reinstate; the motion was in writing, stating what had taken place, and calling upon the other party to show cause why the case should not be reinstated. The motion to reinstate was entered on the motion docket, the other party acknowledged service of the motion and waived a copy on the baeJc of the rule nisi, and the judge granted the order. It is clear to us that this was such an entertaining of the motion to reinstate as suspended the order dismissing. When the motion to reinstate was entertained and a rule nisi granted, the order of dismissal ceased to be the final judgment of the court. But it is said that there is no legal evidence of the granting of the rule nisi; that the only legitimate evidence of what transpires in a court of record is the record or the minutes of the court. This is true; but courts have always exercised the power of correcting their minutes and records so as to make them speak the truth as it in fact existed; and this is the express provision of the Code. Section 3499 of the Code gives the general power to amend the record so as to make it speah the truth. Section 3500 is somewhat more specific, and says that a court will amend the entries of the orders on its minutes, or the records, or other joroceedings mine pro tune. First, when the case is within some statutory provision; second, when there is something on the face of the proceedings to amend by from which what did take place may be clearly known; and third, in all cases where such amendment will be clearly in furtherance of justice. This language is very broad. If the order was in fact granted, the minutes do not speak the truth, and it is a perversion of justice [204] to deny the correction of this clerical mistake: See see. 3507. In this case there is plenty on the face of the proceedings to show what was done. Here is the entry by (he judge on his docket that the rule was granted. The entry is just the entry the judge would have made had he granted the order. The Code, section 267, paragraph 2, requires the clerk to transcribe upon the minutes the judge’s entries on his docket, when not more fully shown upon the minutes. Piad the clerk performed this statutory duty no order nunc pro timo would have been required. So that, as the ease stands, the object is merely to correct a misprision of the clerk: See the case of Pierce vs. Bruce, 38 Georgia, 451. The orginal rule nisi is produced, verified by the acknowledgment on it of the opposite party. It is not necessary that the judge shall sign the orders he grants. The minutes are the evidence of what is done. It is the duty of the judge to have them read, and in no properly conducted court can any order go upon the minutes that is not fully known to the judge. The difficulty of verifying the truth of the grounds of the motion would exist if the order was on the minutes. The defendant is called on to show cause. He may show for cause that the grounds are not true. This is the case in every rule nisi. It is for the judge to decide on the hearing. If the same judge hears the showing and the argument, no difficulty can arise as he knows what took place. If it be a dilferent judge, he finds the truth of the facts by the answer to the rule, and such other methods as a wise discretion dictates: See the case of McKendree vs. Sykes, 40 Georgia, 189. We think there was abundant evidence on the face of the papers and on the docket to show that the order was passed, and what that order was. 2. The judge should have allowed the order to be put on the minutes nunc pro tunc, and this being done he should have permitted the parties to show the facts, and have passed upon the merits of the rule. Judgment reversed.