Henley v. Kinley

delivered the opinion of the court.

The record shows the following facts: The plaintiffs filed their petition praying that certain conveyances be set aside for fraud. Two of the four defendants answered, *177setting up, among other defences, a plea of res judicata. The plaintiffs demurred to this defence, and filed a reply to other matters contained in the answer. The court overruled the demurrer; “ and thereupon the plaintiffs, by their attorneys, electing to abide by their said demurrer, say they will not further plead or reply to the said answer. It is therefore ordered, adjudged, and decreed by the court that the bill of plaintiffs be dismissed, that the said plaintiffs take nothing by their said suit,” etc. * * * Such is the entry of final judgment. At the next subsequent term of the court, the plaintiffs filed their motion for an •amendment of the record, so as to make it show that the demurrer was sustained, instead of being overruled, and that no judgment was rendered against the plaintiffs, as recorded. In support of this motion, it was shown that, on the judge’s docket opposite the entry of the demurrer, the memorandum “sust.” appeared in the handwriting of the judge, and that this was the customary formula for indicating his conclusions when a demurrer was sustained. Against the plaintiffs’ objections, the defendants were permitted to prove by one of the attorneys for the plaintiff, that, as such attorney, he had agreed with the defendants’ counsel before the decision upon the demurrer, that that decision should determine the cause, and that a final judgment should be rendered, to follow the disposition of the demurrer. The court overruled the motion and the plaintiffs appealed.

The statement of the controversy seems to announce its only possible conclusion. The judge’s memorandum on the docket was no record, or any part of a record. As evidence, it was entitled to no more weight than his oral statement would have, after the event. In arraying this against the highest form of evidence, the traditional verity of the record seems to have been lost sight of. The record was conclusive, and could not be thus contradicted at a subsequent term. The plaintiffs were not prejudiced *178by the admission of the attorney’s testimony. The case against the motion was fully made without it, and its only tendency was to sustain the record.

The plaintiffs contend that, as a proposition of law, the demurrer ought to have been sustained; from which it follows that the record should have been amended, so as to show that it was sustained. If the proposition of law be correct, then there was error in the judgment of the court-But error can not be corrected by impeaching its record. An appeal, or writ of error, is the instrumentality for such-a purpose. The judgment is affirmed.