The inherent power which exists in a court to amend its records,
and correct mistakes and supply defects and omissions therein, is
not a power to create a new record, but presupposes an existing
record susceptible of correction or amendment.
An order, entered
nunc pro tunc thirty-three years
after an unrecorded judgment naturalizing an alien is alleged to
have been rendered, may be attacked collaterally on the ground that
the court had no jurisdiction to enter such an order when no entry
or memorandum appears in the record or files at the time alleged
for the original entry of the judgment.
In the absence of jurisdiction to make such an order, the fact
that notice of the application therefor was given to the Attorney
General does not give the court jurisdiction.
This was a petition filed in the Court of Claims in 1894 and
amended in 1902, to recover the value of one-half of certain
property taken in 1866 from the firm of which the petitioner was a
member by Indians then in amity with the United States.
The facts found in the case were substantially as follows:
Charles Gagnon was a British subject. In March, 1858, he declared
before the District Court of Woodbury County, Iowa, his intention
to become a citizen of the United States. He
Page 193 U. S. 452
alleged that in 1863 he was admitted by the District Court of
Richardson County, in the Territory of Nebraska, as a citizen of
the United States, but no entry of this fact appeared in the
records of that court for the year 1863.
It appeared Hosford & Gagnon, under which firm name they
traded, owned horses and cattle of the aggregate value of $15,500
and in 1866, without just cause or provocation on their part,
Indians belonging to the defendant tribes, then in amity with the
United States, took them away. Hosford filed his claim for one-half
of the amount and obtained judgment, which has been satisfied.
Gagnon's claim was for the remaining half.
It further appeared that, in the prosecution of his claim,
Gagnon failed to produce his certificate of naturalization, or a
duly authenticated copy thereof. To meet the requirements of the
law providing that only citizens of the United States can recover
under the Indian Depredation Act, Gagnon relied exclusively on a
record of the District Court for the First Judicial District of the
State of Nebraska (successor of the district court of the
territory), purporting to enter
nunc pro tunc a judgment
of naturalization of the territorial court as of the date of
September 25, 1863.
No paper, memorandum, or entry of any kind was found in the
records of the court tending to show that a certificate of
naturalization had been issued to Gagnon in that year. It also
appeared that the persons who held the offices of judge and clerk
of the territorial court in 1863 were both dead.
The record of the state court recited that it had been made to
appear "by competent evidence" that the alleged application for
naturalization had been granted by the territorial court, but that
the
"judgment of naturalization was never recorded, and if recorded,
the record is lost and cannot be found in the records of this
court, and it being legal and proper that said record should be
supplied, and this Court being willing that said error and omission
be corrected, it is ordered and adjudged that said judgment so
rendered by this court at its
Page 193 U. S. 453
September term, 1863, be entered at large on the journal of this
court as of the date when it should have been entered, to-wit, on
the 25th day of September, 1863, and that the clerk issue to the
said Charles Gagnon the proper certificate of naturalization,"
etc.
It further appeared that, on March 19, 1897, Gagnon's attorneys
wrote the Attorney General that application would be made to the
District Court of Richardson County, Nebraska, on March 29, 1897,
"for restoration of certain lost records relative to the
naturalization of said Gagnon."
Upon the facts thus found, the Court of Claims decided that
Gagnon was not a citizen of the United States at the time the
depredation was committed, and the petition was dismissed. 38
Ct.Cl. 10. Thereupon an appeal was taken to this Court.
Page 193 U. S. 456
MR. JUSTICE BROWN delivered the opinion of the Court.
This case raises the simple question whether, thirty-three years
after a judgment naturalizing an alien is alleged to have been
rendered but not recorded, or, if recorded, the record lost, a
common law court has jurisdiction to enter such judgment of
naturalization
nunc pro tunc, when no entry or memorandum
appeared upon the record or files at the time the original judgment
is supposed to have been rendered. If there be no jurisdiction to
enter such judgment, it may be attacked collaterally.
The power to amend its records, to correct mistakes of the clerk
or other officer of the court, inadvertencies of counsel, or to
supply defects or omissions in the record, even after the lapse of
the term, is inherent in courts of justice, and was recognized by
this Court in
In re Wight, 134 U.
S. 136;
Gonzales v. Cunningham, 164 U.
S. 612,
164 U. S. 623,
and
United States v.
Vigil, 10 Wall. 423. It is also conferred upon
courts of the United States by Rev.Stat. secs. 899, 900, and 901.
This power, however, must be distinguished from that discussed by
the court in
Bronson v. Schulten, 104 U.
S. 410, wherein we held that the authority of the court
to set aside or modify an existing
Page 193 U. S. 457
judgment or order ceased with the expiration of the term, and
from that time all final judgments and decrees passed beyond its
control, and that, if such errors existed, they could only be
corrected by writ of error or appeal to a superior tribunal. An
exception was there made of certain mistakes of fact not put in
issue or passed upon, such as that a party died before judgment, or
was a married woman, or was an infant and no guardian appeared or
was appointed, or that there was error in the process through the
default of the clerk. In the federal courts, the power to amend is
given in general language in the final clause of Rev.Stat. section
954, which declares that such courts
"may at any time permit either of the parties to amend any
defect in the process or pleadings, upon such conditions as it
shall, in its discretion and by its rules, prescribe."
As above indicated, however, this power has been restricted to
amendments made during the progress of the case, or at least,
during the continuance of the term in which the judgment is
rendered.
This power to amend, too, must not be confounded with the power
to create. It presupposes an existing record, which is defective by
reason of some clerical error or mistake, or the omission of some
entry which should have been made during the progress of the case,
or by the loss of some document originally filed therein. The
difference between creating and amending a record is analogous to
that between the construction and repair of a piece of personal
property. If a house or vessel, for instance, be burned or
otherwise lost, it can only be rebuilt, and the word "repair" is
wholly inapplicable to its subsequent reconstruction. The word
"repair," as the word "amend," contemplates an existing structure
which has become imperfect by reason of the action of the elements,
or otherwise. In the cases of vessels, particularly, this
distinction is one which cannot be ignored, as it lies at the basis
of an important diversity of jurisdiction between the common law
and maritime courts.
The power to recreate a record no evidence of which exists
Page 193 U. S. 458
has been the subject of much discussion in the courts, and the
weight of authority is decidedly against the existence of such
power. We have examined a large number of authorities upon this
point, and while they do not altogether harmonize in their
conclusions, the practice in some states being much more rigid than
in others, we have found none which supports the contention that a
record may be created to take the place of one of which no written
memorandum was made or entered at the time the original judgment
was supposed to have been rendered. The following cases contain
instructive discussions of the principles involved, but an epitome
of them would subserve no useful purpose:
Bilansky v.
Minnesota, 3 Minn. 427;
Schoonover v. Reed, 65 Ind.
313;
Smith v. Hood, 25 Pa. 218;
Missouri v.
Primm, 61 Mo. 166;
Brown v. Coward, 3 Hill, 4;
Lynch v. Reynolds, 69 Ky. 547;
Coughran v.
Gutcheus, 18 Ill. 390;
Frink v. Frink, 43 N.H. 508;
Rugg v. Parker, 7 Gray 172;
Balch v. Shaw, 7
Cush. 282.
The power of the court to amend existing records is also
considered at length in the following cases from the federal
courts:
Tilghman v. Werk, 39 F. 680;
Whiting v.
Equitable Life, 60 F. 197, 200;
Odell v. Reynolds, 70
F. 656, 659;
Blythe v. Hinckley, 84 F. 228, 244.
It may be gathered from these cases that, if a memorandum be
entered upon the calendar that a certain document has been filed,
such document, if lost, may be supplied by a copy in the hands of
counsel; or where a judgment or order has been entered upon the
calendar, which does not appear upon the journal, the court may
order a new one to be entered
nunc pro tunc. In such
cases, there is often a memorandum of some kind entered upon the
calendar, or found in the files, and there is no impropriety in
ascertaining the fact even by parol evidence and supplying the
missing portion of the records. But the exercise of a power to
recreate a record where no memorandum whatever exists of such
record is evidently a dangerous one, and, although such power may
have been occasionally
Page 193 U. S. 459
given by the legislature in cases of overwhelming necessity, as,
for instance, by the "lost record act" passed by the General
Assembly of Illinois after the great fire in Chicago in 1870 (Laws
of Illinois, 1871-1872, p. 650), such power has not been hitherto
supposed to be inherent in courts of general jurisdiction. As the
evidence upon which such restoration is made cannot be inquired
into, if the jurisdiction to recreate the record exists, it might
well happen that, upon the testimony of a single interested
witness, the court would order a new record to be entered after a
lapse, as in this case, of over thirty years, and when the judge
and clerk have both died, and there was no possibility of
contradicting the testimony of such single witness.
Additional complications may also be properly referred to in
this case in the fact that the declaration of intention was made
before another court, in another state, and that the territorial
court which is alleged to have entered the judgment of
naturalization had itself been abolished and a state court
substituted in its place. Did the jurisdiction exist to make this
order of naturalization, there is nothing to prevent any person
from applying to any competent court for a similar judgment of
naturalization, or even a judgment for damages, and to have the
same entered
nunc pro tunc as of any date it would be for
his interest to have it rendered. It is true that, in this case,
notice was given to the Attorney General by the petitioner of his
proposed application to the court for the restoration of "certain
lost records," but if the jurisdiction to enter this judgment
nunc pro tunc did not exist, it could not be given by this
notice.
As there was no competent evidence of the citizenship of the
petitioner, there was no error in the action of the court below,
and its judgment is therefore
Affirmed.
