• ARK. ] FRYER V. LAMBERT. 979 FRYER V. LAMBERT. Ophiiim y , delivered Nôvember 30; 1926. ; - COURTS—CONTROL OVER RECORDS. Courts haVe a continuing poWer 'over their reeordS; hot affected by the lapse'of time,' and may restore•lost records; and correct records which were so , M'ade -Up to ;expres§ ajudgment different .frOm the one ;pronounced, by the court. , . ,C0tIRTS POWER OF CLERK. TO, CORRECT xEcogn.The , power of a cour't to correct its " recordsr must be exercised _by ; the court, and tbe . clerk has no authority 'on his own . . • respOnsibility. and With-but an order of the &mit to amend, ehange or correet the judgment record since the 'court :cannot delegate its•judicial 'functions . • •o its clerk. : , 3. COURTS—POWER OF, CLERK TO AMEND REcoan: Where a elerk corrects a mere clerical error in ,a :record, he will be presumed, to aet under the directions of the eoilit. 4: ' COURTS-60ittiECTInN OF DECREE BY CLERk--Where a complaint in 'a Mortgage foreclosUre suit erroneously described the land except in the prayer,. and the default decree,. advertisement of' sale, report of commissioner's deed and approval thereof each contained
1 '980 FRYER V. LAkBERT. [169 • the same error; the clerk had no authority : to make correction thereof, and, the .purperted corrected decree , , was iiroperly. set , aside. , • , • , „ , • . . • • APpeaPfrom , Conway' Chancery' Court ; 'W. E. Atkin-• .§on,- Chancellor ; , :affirined. .-,-- STA:tEME'NT BY THE COURT. j .W Fryei proSeCutes thiS aPpeal to reverse a decree— of the ehandery COurt opening and setting aside a 'fOrecio'Sure decree on real 'estate in 8,.Case wberein J.. W. "Pryer is' the icaainiiit'and Le . i-anzy arid Belle Lambert : r I ; . : rj . a • re tlie,d " e fendants. Tle recOrd:6ova that J.. W. Fryer brOught a Snit ag. ainst Loranzy LaMber t 40 Belle LaMT . 3 . ert ' iji the , Coh-. way, phanCery . COurf tO fOreelOse a mOrtiage on 80 aeres of land chlled ` -th'CadAn:fdade; and On 40 . aereS , of iand knI O"kil h' s" the *areen place. the re 'is' ho disPute between the parties but that the 80-acre tract NIT'a properly described in the complaint, the decree, and in the report of sale, and all the subsequent proceedings. The 40 acre tract is described in the original mortgage as the SW1/4 - of the SE 1/4 of section 30 in township 6, north of range 15 west, and all: the:land is embraced in the mortgage described as situated in Conway , County, Ark, In the body . of the complaint in the fo -reclosure'snit the 40 acre .tractis twice described•.as,being in .section 32. • In the -. prayer of the•complaint it iS described :as being in• section 30. .A copY- of the Mortgage was'ehihited with' the corn-plaint , -The _Prebedent for the o'riginal decree and the decree itself shOw , s . that the 4 . 0,aere tract,was.deseribed as 'being in section 32. The same mistake was carried into the advertisement of the sale of the -land : by the ctmnissionér in . therepOrt of Sale by:the'conimissioner, 'and'in' the eteoution' and aPproVal of 'tbe deed , from the commissioner Fryer' aS the purchaser at the sa . le. There . to • J.•W • : Was 6, default d - ecree in the foreclosure suit ) . wbiph was ei l ter.eiA of, record OR a regular day of an adjourned: term of the Conway Chancery Court held in May, 1921.
ARK.] FRYER V. LAMBERT. 981 Subsequently the clerk: of the chancery couW discovered that the record of the . proCeedings in ! the fore-closnre sijt showed the 40 Acres Of land in question to be described as in section 32 instead , of sectien 30, and he corrected the decree -.of the court so as, to make: it section 30, instead of , section 32, to correspond with the description of the land , in• the, mortgage, as it, appeared of record. The clerk also, corrected the report ;of. .sale and the . deed . roade ,:by • him as commissioner :under., the sale. He also :corrected the, order of the court iapproying the sale so as to make it read as if the land was intsection 30; 1 :instead of. section , 32. These corrections were made After 5 the terni at , which the proce,edings.were 1 14.4 had expired, I and without any .permission from:the. pOurt to make, the alterations. -• I, • -• Upon proof of these facts, the chancellor openédtb.e / foreclosure decree and set it aside, together with'all the / subsequent orders and proceedings in the case. ? i It was further ordered and deereed that Loranzy ' Lambert and Belle Lambert should 'be granted a . neW ) trial, and . be permitted to interpose -their . defense U. the ( . mortgage foreclosUre suit on said land brought against 1 , them by' J. W. Fryer. As . a , boVe'Stated, the eag6" is here i" on appeal. , • • . , - ( , Edward Gordon, for apPellant. . / '-Strait & Straii t, for appellee. HO, - J., (after : stating the facts): Tbe deeisiOn 'of the 'chancery court opening and 'setting aside'the:dectee, • 4nd the *subsequent' , proceedings' in 'tlie 'mdrtgagey . foreclosure suit as to-the 40 aeres'of land in . qUestiOn; rect.' Conrts have a.continuing power oVer their records not affected by the lapse 'of time Should' fhe Yecerd sin any case be lost' 'or' deStreYed; the*cOuri WhoSe 'record it was, p*esseS' The undoubted poiv6r, 'at any time. after-'wards, 'to make a 'neW reeord. There . is ner reaSon wthy the . same rule 'Should net apPly when; iriste'ad-of 'being 'lost; the 'record 'was 'never Made' up,. or Was' s'e . mad& Up
982 FRYER v. LAMBERT. [169 as' ,to express a different judgment than the one pronounced by the:court. Bobo v. State, 40 Ark. 224. -In discussing this subject in the case Of , Hollister and Smith v. -Judges of the .DiStrict' Court of -Lucas County, 8 Ohio St. 201, 'the court . said: )•• "Every coUrt of record has a supervisory and pro-teeting charge-over -its redords and the papers belonging to 'its files ; and it ma'y at any tinae direct the corree-tion of clerical errors, or the substitution of papers in case'the originals are purloined or loSt; and, in the- ex-eiciSe' of the same authority; in case' the records or files should • be fraudulent or otherwise improperly altered or defaced, may direct their -correction 'and restoration te their original condition: And, -in making such 'corrections, the clerk is under the control and authority of.rthe court.", 1 • : • T But such power must be exercised hy the court,, and the clerk of the, court has no authority„on his own responsibility and without an order or direction of the court to , a*end,..change, or 'correct the judgment , record. 34 `C ,.. J. pp:, 71 ,and 221 and.case' cited. The reason is that A court caimot•delegate its judicial functions to its clerk, so that he.may alter , or correct n, judgment recOi:d, eicept in a purely clerical•Way. This is not a case like that ofKennedy v. Knight, • 21 Wis. 340, 94 Am. Dec'. 543, where there was a clerical error in the judgment foreclosure descri lbing One tract of land mortgaged as in range 4 . east, whereas it should have been range 5 east:. The court :s „ aid t „ h . at the ' false de- ,scription would probably not yitiate A deed given of this iract, as . the County, section, and tOWnship were Correctly giyen, and that the error was purely clerical. In such case , the clerk in ,correcting the clerical error is presumed to act under . the directions: of the court. • In the present . case, the error. was not merely clerical, but, was substantial. There was no land in section 32 owned or claimed to be owne0y the defendants in , the foreclosure suit, and they were advised by their at-
ARK.] FRYER v. LAMBERT. 983 torneys that they need not make any defense to the action. The decree of the court described the land as being in Section 32, and it was a mere nullity, in so far as it affected the land in section 30: The clerk transeended his authority in changi•g the decree froma decree of foreclosure of 40 acres of land in .section 32 to that of 40 acres in section 30, and what -Purports to be the corrected . decree is without effect and absolutely void. Pressed Steel Car Co. T. Steel Car Forge'Co:, (3 Cir. Ct. of Appls.), 149 Fed.. 182, and Rockwodd v DavOport, :37 Minn. 533, 5, Am. St. nep. Counsel for the plaintiff in the foreclosure . suit claims that the 40 acres of land in controversy are correctly described in the mortgage as being in section 30. Conceding this to be true, the plaintiff in the forecloSure Snit Could not avail himself of a fOreClosure 'decree of a different 40 acreS of . land. It the actiOn of the, clerk in altering the decree is a mere nullity, the case stands as if , no: foreclosure decree had : been rendered With*respect to the 40 acres in controversy: • • • - .The :action. of the, clerk; hOwever, in changing the decree puts an apparent .eloud -upon the. title of the defendants, and the court properly, after hearing the :proof on -the, question; directed that the ;decree as altered, by the clerk should 13e . set aside, and, inasmuch , as there was no proper foreclosure decree with respect, to the 40 acres in controversy, gave leave to the parties to proceed as if no such -decree had ever teen rendered or entered of record. It follows that the decree must be affirmed. -
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.