"The record shall be made up from the petition, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments and all material acts and proceedings of the court; but if the items of an account, or the copies of papers attached to the pleadings, be voluminous, the court may order the record to be made by abbreviating the same, or inserting a pertinent description thereof, or by omitting them entirely. Evidence must not be recorded." 25 § 1280. To be signed "He shall make up such record, in each cause, in the vacation next after the term at which the same was determined; and the presiding judge of such court shall, at its next term thereafter, subscribe the same." 26 Where the clerk of court records the judgments, orders, and proceedings, such records or journals need not be signed by the judge to give them validity.27 The reasons which influence a court to direct a verdict need not be inserted in a formal journal entry of the judgment based on the verdict.28 The defeated party in an action cannot, by withholding his consent to a form of judgment entry prepared by the prevailing party, prevent the entry of judgment, as there is no provision of the statute requiring that the parties agree upon a particular form of judgment. 20 The journal entry, which it is the customary practice for attorneys to agree upon and file, is not the record, but is a mere form for the convenience of the clerk in making the record.30 § 1281. Completing record "When the judicial acts or other proceedings of any court have not been regularly brought up and recorded by the clerk thereof, such court shall cause the same to be made up and recorded with 25 Rev. Laws 1910, § 5146. 26 Rev. Laws 1910, § 5145. 27 Boynton v. Crockett, 69 P. 869, 12 Okl. 57; Gordon v. Bodwell, 39 P. 1014, 55 Kan. 131. 28 Homeland Realty Co. v. Robison, 136 P. 585, 39 Okl. 591. 29 State v. Linderholm, 135 P. 564, 90 Kan. 489. 30 State v. Linderholm, 135 P. 564, 90 Kan. 489. in such time as it may direct. When they are made up, and, upon examination, found to be correct, the presiding judge of such court shall subscribe the same." 81 § 1282. Conclusiveness When the clerk enters the judgments and orders of the court, the record imports absolute verity, and can only be changed or modified by order of the court; 32 but recitals in the journal entry concerning rulings on the burden of proof will be controlled by what actually transpired at the trial, as disclosed by the transcript of the evidence, and the instructions.83 Where the court has refused to expunge one of two journal entries of a judgment, they will be treated as one record covering the points decided.34 A recital of service in the judgment cannot be set aside, except on the most convincing evidence.35 § 1283. Nunc pro tunc orders On proper motion and notice, the court may by nunc pro tunc order correct its records so that they will speak the truth, and can add any proceedings omitted by clerk through accident or mis36 and where the default was that of the court or its officer, take; 31 Rev. Laws 1910, § 5147. Where judgment was rendered on December 30, 1915, and where, on February 5, 1916, and during same term, the court signed a precedent for judgment, clerk might enter such judgment on journal, as clerk of district courts, during term at which proceedings were had may correct, amend, or supply omissions to make records speak truth. Neil v. Union Nat. Bank of Chandler (Okl.) 178 P. 659. 32 Boynton v. Crockett, 69 P. 869, 12 Okl. 57. 33 First Nat. Bank of Laramie, Wyo., v. Vaughan, 151 P. 1118, 96 Kan. 402. 34 Page v. Pierce, 139 P. 1173, 92 Kan. 149. 35 Where the judgment roll shows service of process in a particular way, no different service will be presumed. Pettis v. Johnston, 78 Okl. 277, 190 P. 681. · 36 Runyan v. Herrod, 62 Okl. 87, 162 P. 196. The court may, at any time during the term at which the proceedings were had, correct, amend or supply omissions, so as to make the record speak the truth, and when so corrected the record relates to the time when the proceedings were in fact had. Ex parte Cook, 103 P. 1041, 2 Okl. Cr. 684. Every court of record by nunc pro tunc order, on proper application and notice, can enter its judgments which by mistake the clerk has omitted to record. Courtney v. Barnett (Okl.) 166 P. 207; Runyan v. Herrod, 62 Okl. 87, 162 P. 196; In re McQuown, 91 P. 689, 19 Okl. 347, 11 L. R. A. (N. S.) 1136; it was the duty of the court to make its record complete where the default is called to its attention with or without a motion.87 Clark v. Bank of Hennessey, 79 P. 217, 14 Okl. 572, 2 Ann. Cas. 219; Rev. Laws 1910, § 5267, subd. 3. The failure of the clerk or recording officer to make a correct record does not vitiate the proceedings in a court of record. Ex parte Cook, 103 P. 1041. 2 Okl. Cr. 684. Where the clerk failed to enter a judgment ordered on a verdict, held not error for the court to grant at a succeeding term, on notice, a nunc pro tunc order, directing the clerk to enter such judgment of record as of the proper date. Mooney v. First State Bank of Washington, Okl., 48 Okl. 676, 149 P. 1173. Where the district clerk has failed to enter a judgment of record, the proper remedy is by application to the district court, upon notice, for an order directing the omitted judgment to be entered nunc pro tunc. Hirsh v. Twyford, 139 P. 313, 40 Okl. 220. Where no entry has been made of a judgment for defendant in an action to quiet title, the defendant's grantee may move in his own name for the entry of a judgment nunc pro tunc. Plummer v. Ash, 133 P. 157, 90 Kan. 40. Where in an action to quiet title constructive service was had on a nonresident defendant who appeared by attorney, plaintiff could not prevent entry of judgment nunc pro tunc for defendant on motion made five years afterwards by merely showing that defendant did not authorize the appearance of the attorney. Id. Where counsel have objections to the journals of the court, they should present the same by proper motion, and have them corrected, or have omissions supplied. Boynton v. Crockett, 69 P. 869, 12 Okl. 57. In habeas corpus proceeding, trial court's refusal to hear evidence in support of a motion that record in another proceeding, claimed to be essential to petitioner's case, be supplied nunc pro tunc was within its discretion. Ex parte Cowan, 163 P. 451, 99 Kan. 711. After expiration of term, and after judgment affirmed, the trial court, on knowledge of what took place, can correct the journal entry to recite the judgment actually rendered. State v. City of Stafford, 161 P. 657, 99 Kan. 265. Where the clerk fails to enter on the journal a formal order showing the convening of the court, the same may be entered in conformity with the facts even after the expiration of the term. Ex parte Tucker, 111 P. 665, 4 Okl. Cr. 221. The formal order opening the court adjudges nothing respecting any person's right in any case, and upon which no person is entitled to a hearing before it is made, and, where the clerk neglects to enter the order in regular course, no notice is required to be given to any person before a nunc pro tune entry is made. Id. In an action for injunction by S. against B. and wife, the court has no power to make a nunc pro tunc order for the entry of judgment in an ejectment suit formerly brought by B. against S. Bridges v. Sargent, 40 P. 823, 1 Kan. App. 442. 37 Board of Com'rs of Day County v. State of Kansas, 91 P. 699, 19 Okl. 375. A district court has inherent power to correct the record of its proceedings so that it shall speak the truth, and this power is not lost by lapse of time and may be exercised by the court on its own motion and without notice. HON.PL.& PRAC.-79 (1249) The court is not confined to any particular class of evidence, but may correct its record upon any competent evidence.88 The statute prescribing procedure for correction of mistakes of the clerk or irregularity in obtaining a judgment, refers solely to civil matters and does not apply to a criminal case.39 A nunc pro tunc entry imports the same verity and proves the contents of the order as effectively as if the order had been entered when made.40 On the hearing of a motion for a nunc pro tunc entry the question is, what order was in fact made at the time by the trial court, and upon such question the minutes on the court's docket and the testimony of the presiding judge are ordinarily controlling."1 The jurisdiction of a court of record to order nunc pro tunc entry of its judgments omitted from record by the clerk of court is not loss by lapse of time, where no intervening rights are affected.** A nunc pro tunc judgment of a court empowered thereto is not open to collateral attack by a party to the proceeding because not made upon sufficient evidence, or because of erroneous findings of fact, or because not supported by findings of fact.13 Counsel cannot correct the record, however, by filing affidavits or inducing the clerk to include matters not part of the transcript.** A journal entry that a motion for new trial was denied on the day filed cannot be attacked on a second motion filed after the time Christisen v. Bartlett, 85 P. 594, 73 Kan. 401, denying rehearing of 84 P. 530, 73 Kan. 401. 38 Lamb v. Alexander (Okl.) 179 P. 587. Where a demurrer to a petition states several grounds, and is sustained on one of them, and a judgment for defendant rendered, but the record shows only that the demurrer is sustained, without indicating upon what ground, the court may at a subsequent term amend the record, so as to state u" what ground the demurrer was sustained, if the fact he established by satisfactory proof, which need not, however, be founded upon any record or other writing. Martindale v. Battey, 84 P. 527, 73 Kan. 92. 39 Ex parte Tucker, 111 P. 665, 4 Okl. Cr. 221; Rev. Laws 1910, § 5268. 40 Bash v. Howald, 59 Okl. 116, 157 P. 1154. A nunc pro tunc entry of an order showing convening of court imports absolute verity when questioned in any other than a proceeding to vacate the same. Ex parte Tucker, 111 P. 665, 4 Okl. Cr. 221. 41 Schockey v. Akey, 6 Kan. App. 920, 49 P. 694. 42 Courtney v. Barnett (Okl.) 166 P. 207. 43 Courtney v. Barnett (Okl.) 166 P. 207. 44 Jenkins v. State, 11 Okl. Cr. 168, 145 P. 500. for filing such motion, on the ground that any hearing and order were without opportunity to except, where it does not affirmatively appear that movant's attorney was without notice or knowledge of the court's action.45 § 1284. Lost or destroyed judgment Where orders or judgments of courts of record are lost or are not reduced to writing, they may be supplied or substituted on proper application and proof satisfactory to the court."" § 1285. Filing transcript-Justice's judgment When a transcript of a judgment of a justice has been filed with the clerk of the district court, such judgment is not a judgment of the district court, so as to give it power to inquire into its validity.*7 However, the record of the transfer is not conclusive.48 45 Boorigie v. Boyd, 139 P. 253, 41 Okl. 550. Laws Kan. 1883, c. 92, authorizes proceedings to establish the record of a judgment destroyed by fire. Section 5 provides that "the defendant may answer by general denial, or by setting forth any new matter arising subsequent to the judgment which operated in whole or in part to extinguish or set aside the same." The holder of a second mortgage obtained a judgment foreclosing it. He was then made a party to a suit in which the first mortgage was foreclosed. The records of both judgments were destroyed by fire, after which execution was issued on the one foreclosing the first mortgage, the land sold, and the sale confirmed. In a suit by the second mortgagee to establish his judgment, held, that the first mortgagee could establish his own 47 Boardman Co. v. Cobb, 62 Okl. 165, 162 P. 729; Rev. Laws 1910, § 5217; Ray v. Harrison, 121 P. 633, 32 Okl. 17, Ann. Cas. 1914A, 413. Assuming the statutes of Missouri to be the same as those of Kansas, the filing of the transcript of a justice's judgment in a circuit court of Missouri does not make the justice's judgment the judgment of the circuit court. Hinman v. Missouri, K. & T. Ry. Co., 83 Kan. 35, 110 P. 102, 21 Ann. Cas. 1152. Judgments of United States Commissioners and mayors of cities and towns in Indian Territory, enforceable at admission of state, held transferable to district court of proper county, and enforceable by execution out of district court. Turk v. Mayberry, 121 P. 665, 32 Okl. 66. 48 Where a justice of the peace, to enable the transfer of a judgment under section 119 of the justices' act, certifies to an abstract that the judgment therein described was rendered by him, and the uncontradicted evidence shows that the judgment was rendered by his predecessor, the record of the transfer will be vacated, and the issuance of process on the judgment as transferred will be enjoined. Hamilton v. Thompson, 44 P. 437, 3 Kan. App. 8. Where a justice's abstract of judgment was in form, "debt, 1.0212; costs 7.3. 20," but in other respects correct, an execution for the correct amount of $102.12 and $73.20 was not void. Dickens v. Crane, 6 P. 630, 33 Kan. 344. |