worth less than $20,000, there is certainly no averment of damage. For these reasons, I think the Circuit Court ruled correctly in sustaining the demurrer, and that the judgment of the Circuit Court should be affirmed.

GROTON BRIDGE & MFG. CO. v. CLARK PRESSED BRICK CO.

(Circuit Court of Appeals, Eighth Circuit. March 24, 1905.)

No. 2,030.

1. JUDGMENT-ENTRY NUNC PRO TUNC.

Where the clerk of a court of record fails to enter up judgment in full, in fact ordered by the court, at the proper time, the judgment may be amended by the court at a subsequent term, so as to express the order formerly made, either on motion or sua sponte.

2. SAME NOTICE TO PARTIES COLLATERAL ATTACK.

Where such nunc pro tunc entry is made at a subsequent term, based on the certain knowledge of the judge of the court, prior notice thereof to the parties is not essential, so as to render the amended judgment amenable to attack in a collateral proceeding.

3. SAME RES ADJUDICATA.

Where, to an action based on a contract for the sale and delivery of brick, the defendant appears and files answer and a counterclaim in the same plea, alleging a breach of the contract claimed by the defendant to have been entered into by the parties, and then bases on such allegations a counterclaim for damages resulting from the alleged breach by the plaintiff, and, when the case is called for trial, fails to appear, and leaves his plea on record without withdrawing it, thereby imposing upon the plaintiff the production of proof to establish its cause of action, and the court proceeds on the evidence to find the issues for the plaintiff on the pleadings, the judgment therein constitutes an estoppel against a subsequent action brought by the defendant in another jurisdiction based on the same state of facts set up in the counterclaim.

Even if the court rendering such judgment, on the failure of the defendant to appear at the trial, should have treated the counterclaim as withdrawn, its failure to do so would, at the most, have been only an irregularity in proceeding, and did not render the judgment liable to attack as void in a collateral proceeding.

(Syllabus by the Court.)

In Error to the Circuit Court of the United States for the Eastern District of Arkansas.

For opinion below, see 126 Fed. 552.

In May, 1898, the plaintiff in error, hereinafter for convenience called the "Bridge Company," had under construction a bridge over the Ouachita river, at Monroe, in the state of Louisiana; and the defendant in error, hereinafter designated for convenience as the "Brick Company," was then engaged in the manufacture of brick at Malvern, state of Arkansas. A contract at that time was entered into between said parties, whereby the Brick Company was to furnish the Bridge Company brick to be used in said bridge work. On December 7, 1898, the Brick Company brought suit by attachment against the Bridge Company in the state circuit court at Hot Springs, Ark. for the recovery of $438.27 on account of balance due for brick sold and delivered, growing out of said contract. To this action the Bridge Company filed answer on the 16th day of February, 1899, which began as follows: "Comes the defendant, by Rose & Coleman, its attorneys, and for answer and by way of counterclaim says: Defendant admits that it is a corporation duly organized under the laws of the state of New York and engaged in the business of building bridges. It admits that at or about the time mentioned

in the complaint the plaintiff contracted to sell to the defendant a kiln of brick containing about five hundred thousand of brick, more or less, and to ship the same to the defendant at Monroe, La., at the rate of six cars a day." The answer then alleged that the plaintiff was informed at the time that the brick were to be used for building piers in said bridge, and that the contract for construction of the bridge required that plaintiff's brick should be used therein, and that with this knowledge the plaintiff sold to the defendant a particular kiln of brick that was then being burned; that in pursuance of said contract the brick mentioned in the complaint were shipped to the defendant; that the plaintiff refused and failed to carry out its said contract by delivering the brick, although often requested thereto; that the plaintiff was notified by defendant that it could not carry out its building contract without said brick, and that in consequence of plaintiff's failure to keep and perform said contract it sustained great loss and damage, in the manner set forth in the answer; that it had to buy brick from other sources at an advance price of two dollars per thousand over the contract price with the plaintiff; and that in consequence of the delay to obtain the material a rise in the river injured defendant's work in process of construction. It asked judgment against the plaintiff in the sum of $4,600. To this answer the Brick Company, on the 16th day of February, 1899, made reply. It denied that it ever contracted to sell the Bridge Company a kiln of brick, or any particular quantity, but only agreed as to the price to be paid for the quantity delivered. It denied any information that the Bridge Company's contract prohibited it from using any brick other than those of the Brick Company. It denied that it failed or refused to carry out its contract with the defendant, or that the defendant was compelled to stop work by any action or nonaction on the part of the plaintiff, and took issue on other new matter pleaded in the answer. In the second paragraph of the reply it alleged that on December 10, 1898, after the institution of plaintiff's suit against defendant, the defendant brought suit in the Circuit Court of the United States for the Eastern District of Arkansas, in which the Bridge Company set up and relied upon the same identical cause of action set out in its counterclaim in this action, which suit was still pending and undetermined.

At the trial term of said suit in the state court the Bridge Company made application for a continuance until the next term of court; and afterwards, on the 14th day of March, 1899, the cause was continued by consent until the August term, 1899. At said August term, the cause coming on for trial, the record recites that the plaintiff appeared by its attorney, and the defendant is three times called and comes not. "Whereupon the cause is submitted to the court on the complaint of the plaintiff, the affidavit for attachment, the answer of the defendant heretofore filed, and reply of the plaintiff, and written and oral evidence introduced in open court; and the court, being well and sufficiently advised as to what judgment to render herein, finds the issues of law and of fact for the plaintiff, and finds the following facts." The judgment then proceeded to recite that the defendant was indebted to the plaintiff in the sum of $438.27, with interest on $351.27 of said sum from the 10th day of November, 1898, at 6 per cent. per annum, and with interest on $87 of said sum from the 1st day of December, 1898, at 6 per cent. per annum, for which sum judgment was rendered, which was directed to be executed on the attached property. It appears that one Jabez M. Smith had been appointed attorney ad litem for the defendant, and there was taxed in said judgment the sum of $10 as costs for his services. It seems that to the action pending in the United States Circuit Court, referred to in the answer, the Brick Company appeared, and, inter alia, interposed the plea of res adjudicata, based upon said judgment in the state court. That action was afterwards discontinued; and on the 31st day of July, 1901, the present suit was instituted by the Bridge Company against the Brick Company in the said United States Circuit Court in which the Bridge Company sets out substantially the same facts pleaded in its answer and counterclaim in said action in the state court respecting said contract and its breaches by the Brick Company, and prays judgment for the sum of $3,000. To this suit the Brick Company made answer, setting up the sale and delivery of the

brick, which was the basis of its action in the state court, aggregating the sum of $1,479, and, after allowing credits, left due and unpaid a balance in the sum of $438.27, for which it brought suit as aforesaid and recovered judgment in the state court. The answer then set out in detail the appearance and answer of the Bridge Company to said suit in the state court, and the facts pleaded and alleged therein, substantially the same as the facts and matters alleged in the present suit, and pleaded the judgment therein as res adjudicata. The answer then further pleaded substantially the same facts set up in its reply to the action in the state court respecting said contract, claiming that it fully complied with the contract it did make, and that the Bridge Company failed to keep the contract on its part by paying the Brick Company for the brick delivered. The Bridge Company demurred to that portion of the answer which set up the plea of res adjudicata, which demurrer was overruled.

It appears from the transcript of the record and proceedings from the state court in said case of the Brick Company against the Bridge Company that the judgment originally entered therein omitted, in the recitation, the words "and reply of plaintiff" in the paragraph, to wit: "Whereupon this cale is submitted to the court upon the complaint of plaintiff, the affidavit for attachment, the answer of the defendant heretofore filed, and written and oral evidence introduced in open court." This judgment of the state circuit court, on the 10th day of February, 1900, was amended by an entry nunc pro tune, which is as follows: "On this day comes the plaintiff and suggests to the court a diminution of the record in this action; and, it being within the knowledge of this court that this case was on the 17th day of August, 1899, submitted to the court upon the complaint of plaintiff, the answer of the defendant, and the reply of the plaintiff, and written and oral evidence, and that the record of the judgment fails to mention the reply as one of the pleadings on which the case was submitted, it is by the court ordered that the record on the trial and judgment of this action made on the 17th day of August, 1899, as appears on page 43, Record B of the records of this court, be amended by interlineation, so as to show that the cause was submitted on the reply of the plaintiff to defendant's answer, among other pleadings, and the amendment is accordingly made." A trial by jury having been waived on written stipulation of the parties, the cause was submitted to the court for trial. The court made a finding of the facts substantially as aforesaid respecting the judgment obtained in the state court, and the nunc pro tune entry inserting the word "reply" as aforesaid, which the court finds was made without notice to the Bridge Company and without its knowledge. Evidence was introduced to disprove the allegations in the counterclaim. Upon such findings the court decided that the defendant, the Clark Pressed Brick Company, was entitled to judgment sustaining its plea of res adjudicata, and rendered judgment for the defendant, to reverse which judgment the Bridge Company prosecutes this writ of error.

C. T. Coleman, W. E. Hemingway, and G. B. Rose, for plaintiff in

error.

W. L. Terry, W. J. Terry, and N. P. Richmond, for defendant in

error.

Before SANBORN, Circuit Judge, and PHILIPS and RINER, District Judges.

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

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; but, 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 regained 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

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 records, 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 power, 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."