Acklen v. Acklen

B. F. SAFFOLD, J. The sole question at issue in this case is, whether a decree of insolvency entered nunc pro tunc by the probate court, on the 16th day of July, 1867, shall take effect against the creditors of the estate in: reference to filing their claims from the date of its entry, or from the 8th of October, 1866, the time when it should have been made. The decree was entered under the provision of section 796 (5a) of the Revised Code, which is as follows : “ Judges of probate have authority to complete the minute entries and decrees in causes in their courts, when the same are incomplete on account of their failure to make the necessary entries at the time when they should have been made, but the necessary applications and proof must first be made ; and such entries, orders and decrees are as valid and binding as if they had been made at the proper time.” It will be observed that this statute is much more comprehensive than that allowing amendments of the record in the circuit court. By the latter, clerical mistakes only can be corrected; and in cases where there is sufficient matter apparent on the record or entries of the court to amend by. — Rev. Code, § 2807. By the former, record evidence is not indispensable, and, consequently, more latitude of construction as to the effects of a judgment so recorded is permissible. Generally, judgments nunc pro tunc are discretionary with the court, at least to the extent that in granting the indulgence the courts will take care that it shall not operate to the prejudice of the defendant. They will make the plain [613] tiff undertake not to disturb intermediate payments made by the defendant, or impeach judgments obtained in the interval. — Tidd’s Prac. 933 ; 6 Danf. & East, 11; 4 Taunt. 702. When leave was given to enter up judgment as of a preceding nunc pro tunc, tbe court of King’s Bench, in order that it might not affect purchasers and mortgagees, ordered it to be docketed of the term in wbicb tbe application was made. — Tidd’s Prac. 939 ; Baker v. Baker, Ex’rx, H. 35, George III, K. B.; 2 Kent, 442. There is eminent propriety in so construing such a law as the one under consideration as to give a plaintiff tbe right to wbicli he was entitled, and at the same time protect tbe interests of the defendant and others against that which did not exist at tbe time they accrued. Tbe authorities above quoted, and tbe justice of tbe case, require us to decide that the decree of insolvency took effect against the appellees from the 13th of July, 1867, the date of its actual entry. The decree is affirmed.