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March 21, 1904



Fuller, Harlan, Brewer, Brown, White, Peckham, McKenna, Holmes, Day

Author: Brown

[ 193 U.S. Page 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, 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

[ 193 U.S. Page 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 or 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,

[ 193 U.S. Page 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 Minnesota, 427; Schoonover v. Reed, 65 Indiana, 313; Smith v. Hood & Co., 25 Pa. St. 218; Missouri v. Primm, 61 Missouri, 166; Brown v. Coward, 3 Hill (S. Car.), 4; Lynch v. Reynolds, 69 Kentucky, 547; Coughran v. Gutcheus, 18 Illinois, 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 Fed. Rep. 680; Whiting v. Equitable Life, 60 Fed. Rep. 197, 200; Odell v. Reynolds, 70 Fed. Rep. 656, 659; Blythe v. Hinckley, 84 Fed. Rep. 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

[ 193 U.S. Page 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 1871, (Laws of Illinois, 1871-2, 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



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