Groton Bridge & Mfg. Co. v. Clark Pressed Brick Co.

PHILIPS, District Judge, after stating the case as above, delivered the opinion of the court. The question to be decided is whether the judgment of the state court in the suit of the Brick Company against the Bridge Company creates an estoppel against the maintenance of the action brought in the United States Circuit Court. The first contention on behalf of plaintiff in error is that the — 30 — nunc pro tunc entry, whereby the word “reply” was inserted in the judgment, should be regarded as a nullity, for the reason that it was made without notice to the defendant therein. The emendation of court records by subsequent entries was expressly authorized by St. 8 Hen. VI, c. 12, which declared that: “The justices are further empowered to examine and amend what they shall think, in their discretion, to be misprisions of their clerks, in any record, process, word, pleading, power of attorney, writ, panel or return.” Tidd’s Prac. (Am. Ed.) § 712. This statute is a part of the common law of the state of Arkansas. It does, however, but give sanction to the inherent power which, from its very constitution and responsibility, must reside in every court of high jurisdiction, to enable it to see to it that its records speak the truth, as a false record is an offense to the law. A judgment is what the court pronounces. The entry made by the clerk may be evidence of what the pronouncement of the court was; i>ut, as it is but the act of the scrivener of the court, his failure to properly and exactly put down what the court in fact ordered is a mere misprision of the clerk, which the court at any time can, and should, rectify by having the order or judgment the court in fact directed entered nunc pro tunc. This is succinctly expressed in St. 8 Hen. VI, supra, empowering the judges “to examine and amend what they shall think, in their discretion, to be misprisions of their clerks.” In re Wight, 134 U. S. 136, 10 Sup. Ct. 487, 33 L. Ed. 865, the petitioner had been indicted in the United States District Court for the Southern District of Michigan. After conviction he filed a motion for new trial and in arrest of judgment, the hearing of which the District Court certified and remitted to the next Circuit Court of the district. On hearing before Circuit Judge Jackson, and Brown, District Judge, the motions were denied; and on the-same day the judge of the District Court proceeded to judgment of sentence against Wight, who thereupon applied for his discharge on writ of habeas corpus, to Mr. Justice Harlan, the justice assigned at that time to the Sixth Circuit. The basis of this application was that the record failed to show that on the overruling of said motions by the Circuit Court there was- an order remitting the case back to the District Court. Confessedly, after the transfer of the case to the Circuit Court, unless the District Court regaiñed jurisdiction of the case by proper order of the Circuit Court remitting the case to the District Court, the latter had no jurisdiction to sentence the petitioner. This fact being called to the attention of the judges of the Circuit Court, they caused an order to be made, nunc pro tunc, based “upon the inspection of said records,” remanding the cause to the District Court; and thereupon .the writ of habeas corpus was discharged. In reviewing this action of the Circuit Court Mr. Justice Miller went quite fully into the question, and approved that line of decisions which holds that the power is inherent in courts of record, by entry nunc pro tunc at a term subsequent to that at which the judgment was rendered, to make the record show fully the order or judgment the — 31 — court in fact made at the proper term, but which the record failed to disclose. In no jurisdiction is this practice more fully recognized than by the courts of Arkansas. In Bobo v. State, 40 Ark. 231-232, Chief Justice English presented a summary of the decisions of that court touching this practice, the sum of which is that: “Courts have a continuing power over their recoMs, not affected by the lapse of time. Should-the record in any case be lost- or destroyed, the court whose record it was possesses the undoubted pow.er, at any time afterwards, to make a new record. In doing this it must seek information by the aid of such evidence as may be within its reach tending to show the nature and existence of that which it is asked to re-establish. There is no reason why the same rule should not apply, when, instead of being lost, the record was never made up, or was so made up as to express a different judgment than the one pronounced by the court. Hence the general rule'that a record may be amended, not only by the judge’s notes, but also by other satisfactory evidence” — Citing Frink v. Frink, 43 N. H. 514, 80 Am. Dec. 189, 82 Am. Dec. 172. He also cited with approbation what Fletcher, J., said in Balch v. Shaw, 7 Cush. 284, as follows: “There can be no doubt that it is competent for a court of record, under its general, inherent, and necessary authority, to correct the mistakes and supply the defects of its clerk or recording officer, so as to have the record conform to the actual facts and truth of the case; and this may be done at any time, as well after as during the term, nunc pro tunc. * * * This was not a case of want of jurisdiction, in which the record cannot be amended, because, there being an omission to act, there is nothing to record. In such case the defect is not in the record, but in the action of the court.” The answer to all this, made by the learned counsel for plaintiff in error, is that there was no notice given of the motion for the nunc pro tunc entry. In Balch v. Shaw, supra, in discussing this question, the court said: “The court of common pleas, having the exclusive right and jurisdiction in the matter, were the proper judges of the necessity and propriety of extending the record, and of the proofs and of the sufficiency of the proofs upon which to proceed. Such a record, when made up, is conclusive, until altered or set aside by the same or some other court having jurisdiction; but it cannot be drawn in question collaterally when such record is used or relied upon in support of a title. It was further said that the extended record was invalid, because made without notice. But this was not a case for notice. Surely a court of record need not give notice to all the world to come in and show cause why it should not make its record conform to the truth of the case. Any party, who supposes he can show such cause, should apply to the court to have the record set aside or expunged, after it is made. * * * The court might'amend their records upon their own motion, or upon the motion or suggestion of any one interested. It is not a proceeding in which there need be any parties. It is the act of the court itself, correcting its own records, to make them conform to the truth of the case.” In Lewis v. Ross, 37 Me. 230, 59 Am. Dec. 49, the court said: “On general principles it is competent for a court of record, and incident to its authority, to correct mistakes in its records which do not arise from the judicial action of the court, but from the mistakes of its recording officer. In doing this it may regulate its own actions upon its own sense of responsibility and duty, and proceed, upon suggestion or motion of those interested, or upon its own ‘certain knowledge and mere motion.’ * * * It would not be an adversary proceeding, in which, of necessity, there should be parties, or in which notice would be required.” — 32 — In Odell v. Reynolds et al., 70 Fed. 656, 17 C. C. A. 317, the court, in discussing the practice of such entries nunc pro tunc, said: “Sometimes the propriety of such action exists in cases where the correction may be made upon that which appears in the record itself, and is necessary to make it consistent and harmonious, one part with another. In other eases it is necessary, in the interests of justice, to act upon matters not appearing from the record; for example, things resting in the recollection of the judge, or evidence adduced aliunde. In the former case notice to the parties is not necessary. No new thing is brought upon the record. * * * There is nothing to litigate. No right is substantially affected. * * * If it is the recollection of the court, it is doubtful whether' notice is required, for the reason that it is not open to contest. At all events, it would seem, upon the authorities, that corrections of the record made by the court upon its own recollection would not be collaterally assailable, though made without notice.” The order of the court amending the record in the case here under review shows that it was based upon the knowledge of the court of the facts. It was, therefore, a matter appealing to the conscience of the judge to have the record of his court contain the truth, the whole truth, and nothing but the truth. The requirement of notice to a party implies the right to appear and contest. A challenge to the court on an entry directed to be made, based upon its own knowledge, would present an unseemly contention before the presiding judge. How could such an issue be tried? The presiding judge says, “Within my own knowledge the case was tried on the petition, answer, and reply.” Would the defendant, in the face of the court’s statement, be heard to say, “I deny it”? If the court is to try it out, is the judge to yield his own knowledge, his inward consciousness, to what some witness may say? The inevitable presumption that the court would follow its own knowledge and conscience is, in itself, a contradiction of such practice. At no time during this controversy has the plaintiff in error challenged the truth of the fact recited in the nunc pro tunc entry. The next contention on behalf of the plaintiff in error is that when it, in the state court, failed to appear and prosecute its counterclaim, it was tantamount to a nonsuit, or withdrawal of the counterclaim, and the court should have so treated it. Therefore there should have been no trial of the issues raised by the answer and reply, and no judgment thereon. If this were conceded, would it follow that the action of the court in proceeding to trial and judgment on the whole issues presented by the pleadings rendered the judgment subject to collateral attack? The'defendant therein having appeared and filed answer, it remained in court for all purposes connected with the litigation until such answer was withdrawn, which was never done. The court being one of general jurisdiction over the parties and the subject-matter, it had the power to adjudicate. At the utmost, therefore, its action in not treating the failure of the defendant to urge its counterclaim as a constructive abandonment thereof was only an irregularity in a matter of procedure, a voidable error, and not a judgment coram non judice. In Shaver & Son v. Shell, 24 Ark. 122-123, the justice of the peace, where the suit was on an open account and the plaintiff failed to appear, instead of entering a nonsuit against the plaintiff, as con — 33 — templated by the practice act, rendered judgment by default against the defendant. Of a collateral attack made on this judgment, English, C. J., said: “The justice should have nonsuited the plaintiffs; and it was an error for him to render judgment by default against the defendant, which she could have corrected by appeal; but, failing to appeal, the judgment became final. The justice having jurisdiction of the subject-matter of the suit, by service of the process, which affirmatively appears, the judgment could not be regarded as null and void, when presented to the circuit court collaterally, on account of the error of the justice in rendering it without evidence” — citing Hill v. Steel, 17 Ark. 440; Alston, Ex parte, Id. 580. Such a proceeding was merely erroneous, correctable by writ of error. Patting v. Spring Valley Coal Co., 98 Fed. 811, 39 C. C. A. 308. It is not subject to collateral attack. Dowell v. Applegate, 152 U. S. 339, 340, 14 Sup. Ct. 611, 38 L. Ed. 463. Freeman on Judgments, p. 252, § 135, says: “Jurisdiction being obtained over the person and the subject-matter, no error or irregularity in its exercise can make a judgment void.” . The defendant having left its answer on file, the plaintiff therein could not have moved to strike it from the files, nor could the court disregard it; and this for the palpable reason that the answer contained something more than a counterclaim. It opens with the statement: “Comes the defendant, and for answer and by way of counterclaim says.” It then proceeds to state that the plaintiff contracted to sell to the defendant’ a kiln, containing about 500,000 brick, more or less, and to ship the same to Monroe, La., at the rate of six cars a day; that it had information of the use to which the defendant was to put the brick, and that the plaintiff, therefore, agreed to furnish the defendant a particular kind of brick; that the brick sued for by plaintiff were shipped “in pursuance of said contract; * * * that it afterwards failed and refused to carry out its said contract by delivering the brick, although the delivery thereof was continually demanded, but sold said brick to other parties, and utterly failed and refused to carry out its contract.” So, while it is true that on the plaintiff’s alleged breaches of the ’ contract the defendant laid the predicate of its counterclaim, the facts alleged stated a complete defense to the plaintiff’s right of recovery. As the account sued on was for brick delivered under the contract, the contract being an entirety, if the plaintiff itself, as alleged in the answer, broke the contract, it was not entitled to recover thereon, on the ground that he who commits the first substantial breach of a contract cannot maintain action against the other party for a subsequent default in the performance thereof. Cattle Company v Martindale, 63 Fed. 84-89, 11 C. C. A. 33-38; Guarantee Co. v. Mechanics’, etc., Co., 183 U. S. 402, 22 Sup. Ct. 124, 46 L. Ed. 253; Imperial Fire Insurance Company v. Coos Co., 151 U. S. 463-467, 14 Sup. Ct. 379, 38 L. Ed. 231; Hubbard v. Association, 100 Fed. 719, 40 C. C. A. 665; National Surety Company v. Long, 125 Fed. 887, 60 C. C. A. 623. If the Bridge Company preferred to try its counterclaim in the federal court, the proper course, and the only course open to it, was to withdraw its answer in the — 34 — state court, 'relieving the plaintiff of the burden of introducing any evidence to support its action. As said in Eastmure v. Laws, 7 Dowling, 435, 436, by Bosanquet, J.: “I have always understood that when issue is joined between two parties in a cause, on a second action on the same matter, the verdict, judgment, and issue in the first suit may be pleaded by way of estoppel, and are conclusive. * * * That is the case here, and there is averment that the sum which was the subject of set-off in the first action is the same which is now in controversy.” After stating that the defendant was not bound to plead the set-off, he added: “It is for the defendant, therefore, to say whether he will defend the action without pleading the set-off, and, if he pleads, he must suffer the consequences of leaving it on record. Here he has abandoned the opportunity of taking the plea off the record, on payment of all costs, which he might have obtained on going to the judge at chambers, up to the very last moment before the trial was called on. But he puts the plaintiff to the trouble of coming down to contest the plea set up.” By leaving its answer on file in the case, judgment by default against the defendant could not go. It placed the plaintiff under the necessity of going to trial on the issues, and adducing proof to show what the contract was and that it had not violated it. That particular fact, therefore, was included in the matter adjudged. The very foundation of the suit in the federal court is that the Brick Company did not observe and keep its contract, but broke the same, to the damage of the Bridge Company in the sum of $3,000. As under the Code of Arkansas no reply is required, except as to counterclaims and the like set up in the answer, the judgment pleaded as an estoppel, with or without the amendment made by the state court, concluded the controversy as to who had broken or kept the contract, because it was directly involved in the issues made by the defendant’s answer. Durham v. Bower, 77 N. Y. 80, 33 Am. Rep. 570; Patrick v. Schaffer, 94 N. Y. 423-507; Cromwell v. Sac County, 94 U. S. 353, 24 L. Ed. 195; Southern Minn. Ry. Co. v. St. Paul, etc., Ry. Co., 55 Fed. 695, 696, 5 C. C. A. 249. It results that the judgment of the Circuit Court must be affirmed.