Branger & Driard v. Chevalier

Burnett, J., after stating the facts, delivered the opinion of the Court—Terry, C. J., concurring. The first question presented is, whether the Judge can after-wards set aside or revoke his certificate to the correctness of the statement.

We think that he may do so during the term of the Court at which the judgment was rendered. But after the time has expired, it cannot be done. The statement, when filed, becomes a matter of record. While the term lasts, the Court has power to amend the record. After the term has passed, the record can not be amended, unless there is something in the record to amend by. The settled statement, until certified, is not record.

The second question is, whether the order of the Fourth District Court was proper. The only evidence of the order made by the Judge of the Superior Court, revoking his certificate to the correctness of the engrossed statement, was found in the recollection of the Judge, and of the counsel. This was not sufficient. Had the order been made in writing, and signed by the Judge, and simply omitted to be entered on the minutes, then the order nunc pro tunc would have been proper.

The correct rule would seem to be this: That during the term the record may be amended in any manner so as to be made conformable to the facts. But when the term is past, it can only be amended in cases where the record itself shows the error. In such ease, there must be record evidence to amend by. (3 Cal. Rep., 255; 7 Marshall’s Ky. Rep., 237.)

For these reasons, the motion is denied.