Tynan v. Weinhard

Mr. Justice Magruder delivered the opinion of the court: The Appellate Court, by its judgment in this case, has reversed the order and decree of the City Court of Alton, which directed that the order of adoption alleged to have been made by said City Court at its September Term, 1869, should be entered nunc pro tunc upon the records of said City Court by the clerk thereof as of the 28th day of September, 1869, and has remanded the cause to said City Court with directions to that court to enter an order, denying the motion of Mary E. Tynan, who was appellee in the Appellate Court, but is appellant in this Court, and dismissing her petition with all costs to be taxed against her. We concur in the conclusion reached by the Appellate Court. The petition for adoption was never filed in court. No entry of the proceeding was ever made on any docket,either of the clerk or the judge. No. order of adoption was made by the judge in any pending suit or proceeding. No minute, or memorandum, or memorial paper of any kind was in existence, upon which an order nunc pro tunc could be based. It is alleg-ed that, on September 28,1869, Jacob Young came into court with a petition drawn for the adoption of Mary E. Murray, and with an order drawn granting the prayer of the petition and declaring Mary E. Murray to be -the child of Jacob Young and changing her name to Mary E. Young; and proof is introduced for the purpose of showing, that this petition and order were handed to the clerk of the court, and the clerk handed them to the judge, and the judge marked on the order “approved,” and handed the papers to the clerk, and the clerk, without filing them or docketing the case or making any entry of any kind, handed the papers back to Jacob Young, who carried them off and never returned them to the clerk, or into court. Jacob Young left Illinois for Oregon in 1873 and died in 1875. His wife married again and died in 1886. Mary E. Murray went to Oregon with Young and his wife, and married Tynan in 1883 under the name of Mary E. Murray, and not under the name of Mary E. Young. The papers, said to have been thus carried away by Young, are not produced, but are alleged to have been lost or destroyed. On December 28,' 1892, more than twenty three years after September 28, 1869, Mary E. Tynan -makes a motion in the Alton City Court, that an order, adopting herself as the child of Jacob Young, be entered nunc pro tunc as of September 28, 1869, and such an order is entered on March 15, 1893. It is well settled in this State, that amendments of the record will not be allowed after the close of the term at which the record was made, unless there are some memoranda, minutes, or notes of the judge, or something appearing on the record or files, to amend by. (Ayer v. City of Chicago, 149 Ill. 262). It is said, however, that this is not a motion to modify, alter or amend a judgment entered at a previous term, but a motion to require the clerk to enter upon the record a judgment of the court which he had failed or omitted to record; and that it is always proper to enter a judgment nunc pro tunc when it has _ been ordered by the court, but the clerk has failed or neglected to copy it into the record. (Howell v. Morlan, 78 Ill. 162). In Howell v. Morian, supra, in an action of assumpsit begun in Gallatin County and taken by change of venue to White County, there was a trial before a jury in the latter county at the November Term, 1873, at which both parties appeared and introduced evidence, resulting in a verdict for plaintiff; the court overruled a motion for a new trial, but omitted to enter a formal judgment upon the verdict; at the November Term, 1874, upon motion of the plaintiff and notice to the defendant, the court ordered judgment to be entered upon the verdict nunc pro tunc as of the November Term, 1873; it there appeared that the court rendered judgment upon the verdict at the same term at which the verdict was returned, but it did not appear what kind of evidence was introduced to show that judgment had been then rendered; it was said, however, that the best evidence of the rendition of the judgment at the ¡irevious term would have been the minutes of the judge entered upon his docket; and the action of the Circuit Court in entering the judgment nunc pro tunc was sustained by this Court upon the ground that, as the bill of exceptions did not disclose the evidence, the trial court would be presumed to have acted upon the best evidence. That case is not authority for the position that oral evidence is allowable in such a case. There are cases which hold, that an entry nunc pro tunc- may be ordered on oral evidence, if it is sufficient and satisfactory. But the view sustained by the weight of authority is that a judgment nunc pro tunc should be entered on record evidence only. The fact, that a judgment has been ordered by the court, or has been rendered at a previous term, cannot be proven by oral' testimony. It must be shown by the production of some note or memorandum from the records or quasi records of the court, or by the judge’s minutes, or some entry in some book required to be kept by law or in the papers on file in the cause. It cannot be determined from the memory of witnesses, or by the recollection of the judge himself. To allow oral testimony to be introduced in such cases is to permit the record- to be contradicted by parol proof. (1 Black on Judgts. sec. 135; 12 Am. &. Eng. Enc. of Law, page 81; Herring v. Cherry, 75 Ala. 376; Ludlow v. Johnston, 3 Ohio, 577; Raymond v. Smith, 1 Metc. (Ky.) 65; Belkin v. Rhodes, 76 Mo. 643; Hansbrough v. Fudge, 80 id. 307; Fletcher v. Coombs, 58 id. 430; Boring v. Groomer, 110 id. 632; Ilegeler v. Henckell, 27 Cal. 491; Short v. Kellogg, 10 Ga. 180; Robertson v. Pharr, 56 id. 245; Coughran v. Gutcheus, 18 Ill. 390; Dougherty v. People, 118 id. 160). In each of the cases above referred to, where it was held that an entry nunc pro tunc will not be made upon oral evidence as to what judgment had been rendered by the court, there was a regular suit pending in court and properly entered upon the docket. Here, however, although it is claimed that an order of adoption was made by the Alton City Court, yet it does not appear that any suit was pending in which such an order was entered, or that any papers were filed, or that there were any docket entries or minutes of any kind. It is true that, where a record has been lost or destroyed, its contents may be proved. But, before the contents of a record can be proved, it must be shown that it once existed. Here, an attempt is made to create a record; to introduce parol testimony to prove the existence of a legal proceeding and the rendition of a judgment -therein, and then to substitute this testimony for the record itself. This cannot be done. (Ludlow v. Johnston, supra; Hegeler v. Henckell, supra; Raymond v. Smith, supra). The proceedings, orders, judgments and decrees of Courts must be matters of record, and do not rest in parol. As a general rule, their acts can only be proved by the record itself. The statute in force in this State in September, 1869, required the clerks of the Circuit Courts to keep “a- docket of all the causes pending in their respective courts, in which shall be entered the names of the parties, the cause of action, and the name of the plaintiff’s attorney,” and to keep a fee book, setting down therein the costs of each suit, and also to keep well bound books for entering therein an alphabetical docket of all judgments and decrees rendered in their respective courts. (Stat. of 1845, chap. 83, secs. 9, 40, 43). By the Act establishing a city court in the city of Alton the clerk of that Court was required to perform like duties to those required of the clerks of the Circuit Courts. (Laws of 1859, page 72, sec. 7). Hence, the best evidence that there had been a proceeding for the adoption of appellant, and that a judgment had been rendered for her adoption, would have been the dockets and books required to be kept by express statutory enactment. In the absence of proof that the proceeding and judgment were entered in such dockets and books, oral testimony that they existed outside of the record could not be received, and it was error to allow it to be introduced. “Where the law requires records to be kept, they are the only lawful evidence of the action to which they refer, and such record cannot be contradicted or supplemented by parol. The whole policy of the law would be defeated if they could rest partly in writing and partly in parol.” (People v. Madison County, 125 Ill. 334), It sometimes happens, where a judgment, which should have been entered, has been delayed by the act of the court, or by some other interruption not owing to the fault of the parties or either of them, and in the meantime one of the parties has died, that the judgment will be entered nunc pro tunc as of a day previous to the death. Judgment nunc pro tunc will not be allowed, however, in such cases, if the delay is caused by the laches of the party entitled to judgment. (Blaisdell v. Harris, 52 N. H. 191; 1 Black on Judgts. sec. 129). In the case at bar, if Jacob Young was ever entitled to have the order of adoption entered before his death in 1875, the delay in entering it was due to his own laches. He lived six years after the petition and order are alleged to have been presented to the judge, and four years of that time in Illinois, yet he failed to return the papers into court to have them filed and docketed and the order spread upon the records. It was his own fault that they were carried away, and it was due to his own laches that they were not restored. He will be presumed to have known the law, that filing and docketing and recording were necessary to give them any force or validity. It is furthermore claimed by the appellees, that the City Court of Alton hadmo jurisdiction to entertain the petition for adoption, upon the alleged grounds, that, although said Court was established in 1859 by Act of February 9 of that year, (Laws of 1859, page 71), yet the Act of April 22, 1867, relating to the adoption of minors, (Laws of 1867, page 133), which was in force in September, 1869, provided “that any person desirous of adopting a child, so as to render it capable of inheriting his or her estate, may present a petition to the Circuit or county court of his or her residence, setting forth the name, age and sex of such child,” etc.; that the legislature thereby intended such applications to be made to Circuit or County Courts, and not to City Courts; that, as section 1 of the Act of 1859 conferred upon the “Alton City Court” • concurrent jurisdiction, “within the city of Alton,” with the Circuit Court of Madison County in all civil and criminal cases, except in cases of ^treason and murder, and as' the Act of 1867 required the petition for adoption to be presented to the Circuit Court or County Court of the residence of the petitioner, only those persons residing within the City of Alton could present such petition to the “Alton City Court,” if the latter court had any power at all'to act in such a matter; and that, as Jacob Young was not a resident of the City of Alton but of the town of Greenwood outside of the limits of that city, the “Alton City Court” had no power to entertain his application. , Although the question of jurisdiction, which is thus raised, is a very important and interesting one, yet we do not deem it necessary to pass any opinion upon it, as the views already herein expressed are sufficient to dispose of this case. The judgment of the Appellate Court is affirmed. Judgment affirmed.