Tucker v. Hawkins

Battle, J. About the nth day of December, 1897, Calvin Tucker, now deceased, and D. D. McCright instituted a suit in the Monroe chancery court, against W. M. Hawkins, and T. H. 'Jackson and W. E. Williams, sheriffs, respectively, of Monroe and St. Francis counties. On the 24th of October, 1899, the defendants recovered a decree against the plaintiffs. The decree recites that plaintiffs, to sustain their complaint, introduced a judgment in a certain action of replevin, and the execution that was issued thereon, and the depositions of S. B. Kelly, M H. Vaughan, T. E. Vaughan, and W. T. Tucker; and the defendant Hawkins, to sustain his answer, introduced the depositions and statements of W. M. Hawkins, M. J. Manning, J. P. Eee, W. T. Bonner, E. A. M. Webb and J. E. Eentz, and exhibits, and the oral testimony of J. S. Thomas and T. H. Jackson. The oral testimony was not in any manner made a part of the record. On the 13th day of February, 1902, the plaintiffs, by motion for a nunc pro tunc order, attempted to have the oral testimony made a part of the record; and the motion was denied. When the record does not contain all the evidence adduced at the hearing of a cause, “we indulge the presumption that there was proof of every fact which is necessary to sustain the court’s ruling, wherever evidence adduced at the proper time would justify its action. Every ruling is presumed to be right, unless the record contains matter which shows affirmatively that it is wrong.” McKinney v. Demby, 44 Ark. 74; Railway Company v. Amos, 54 Ark. 159, 15 S. W. 362. The record of the decree in this case speaks the truth. It is not amendable by making certain testimony a part of it which was not a part thereof, when no effort had been made to that end at the term at which the decree was rendered, and nothing for that purpose was done. A nunc pro tunc order does not create, but states what has been done. Cox v. Gress, 51 Ark. 224, 11 S. W. 416; Gregory v. Bartlett, 55 Ark. 30, 17 S. W. 344. Decree affirmed.