# Baldwin v. Brown

> Supreme Court of Arkansas · March 3, 1924 · 166 Ark. 1

URL: https://www.frixlaw.com/law-library/cases/7813007

## Case

- **Full name:** Baldwin v. Brown
- **Court:** Supreme Court of Arkansas
- **Decided:** March 3, 1924
- **Citations:** 166 Ark. 1; 265 S.W. 976; 1924 Ark. LEXIS 44
- **Precedential status:** Published
- **Opinion:** On rehearing by Hart
- **Judges:** Hart, McCulloch, Ohief, Smith
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Hart, J., (on second rehearing). The opinion in this case on the former rehearing held that the plaintiff, under a prayer for general relief to cancel her deed to Baldwin for fraud, was not entitled to recover a personal judgment for damages against Hurst and the other defendants.
Counsel for appellee then represented to the court that he had asked and obtained leave of the court to amend1 the prayer of her complaint by interlineation, to show that she had asked judgment for damages against the defendants. This court then made an order to continue the case to enable the parties, or either of them, to obtain from the chancery court, “in accordance with the decisions of this court in Hagerman v. Moon, 68 Ark. 279 , a correction of the record, if any error is found therein, with respect to the interlined words in appellee’s amendment and supplement to her complaint, and to bring into this court on certiorari any order made by said chancery court, with respect to such correction. ’ ’
In Hagerman v. Moon, supra, this court held that parties aggrieved by errors in the record of the court below, and desiring to have them corrected, should apply to that tribunal for correction, and not to this court. There it was contended in this conrt by the defendant that the action was not submitted npon the amendjnent ■ of the complaint, bnt upon the complaint and exhibits and the answer and exhibits. The record1, however, showed that the defendant was in error, and that the case was submitted upon the amendment in the court below, and this court held that it should be governed by the record.
In the exercise of our lawful discretion in the premises, however, we set aside the submission in this court and continued the matter, in order that the parties, or either of them, could apply to the chancery court for a correction of the record1, so as to show that the case was submitted to the chancery court on an amendment to the complaint allowing the plaintiff to ask for personal judgment for damages against Hurst and the other defendants.
The record shows that the chancellor who originally tried the case was dead when the application to amend the record was made. His docket showed that the plaintiff was given permission to amend her complaint by interlineation, but it does not show in what respect. Parol evidence was introduced by appellee tending to show that the interlineation granted by the court was to permit the plaintiff to ask for personal judgment for damages against Hurst and the other defendants.
On the other hand, the evidence for the appellant tends to show that no such amendment was asked for or máde by the plaintiff to her complaint. The evidence for appellant tends to show that the interlineation which the chancery court granted by the notation in question on his docket was asked for because the contention of the plaintiff was that the allegations of the complaint were sufficient to connect Bradley and Hurst with the issues óf fraud involved in the case, and that the only thing mentioned in the argument of the matter was that the complaint did not even contain a prayer for any relief against these parties.
I am of the opinion that the only amendment that was intended to be made to the record in the court below was to allow a nunc fro tunc entry, if the facts should warrant that course, on the record1, to show that the plaintiff was permitted to amend her complaint so as to ask a judgment for damages against Hurst and the other defendants.
In Bobo v. State, 40 Ark. 224 , this court held that parol evidence of a judgment which was omitted from the record is sufficient to authorize a nunc fro tunc judgment; hut that such correction, after the term at which the original judgment was rendered, should be made with caution and after satisfactory evidence. This rule has been steadily adhered to ever since.
Tested by this rule, I do not think that the evidence is of that clear, convincing and decisive character that is necessary to establish a nunc fro tunc order. No doubt all the parties are testifying honestly as to their recollections about the matter, but the testimony of the witnesses is flatly contradictory, and they are of equal credibility. Hence it cannot be said that the fact that the court granted the plaintiff leave to amend her complaint by interlineation so as to show that she asked a personal judgment against Hurst and the other defendants was established by clear and satisfactory evidence. Then the case must stand before us as it did when the original opinion on rehearing was delivered, and, no specific relief of that character having been asked against Hurst and the other defendants, the court was not warranted in rendering a personal judgment against them under the prayer for general relief.
I do not think that the question of whether or not the interlineation was in the complaint when the transcript was first filed in this court and was left out of the transcript by mistake is controlling. Even if the interlineation had been there, if the plaintiff was not given leave to make it, it could not be availing here. Unless the amendment was made by leave of the court, it could not have influenced the court in the premises. In other words, if the court did not give the plaintiff leave to amend her complaint in the respect in question, it is manifest that the court rendered a personal judgment against Hurst and the others under the belief that it had the power to do so under the prayer for' general relief.
Judge Humphreys concurs with me in the views expressed above. Therefore we are of the opinion that the motion of appellee for a rehearing should be denied.
Jud'ge Wood thinks it should be denied because a preponderance of the evidence shows that the interlineation in question was not in the complaint at the time the transcript was filed in this court.
Thus it results that the majority of the court, for different reasons, are of the opinion that the motion of appellee for rehearing should be denied, and it is so ordered.
McCulloch, C. J., and Smith, J., dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7813007. Public record. Not legal advice.