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Galloway v. McKeithen

Supreme Court of North Carolina
Dec 1, 1844
27 N.C. 12 (N.C. 1844)


(December Term, 1844.)

1. A court has a right to amend the records of any preceding term by inserting what had been omitted either by the act of the court or the clerk.

2. A record, so amended, stands as if it had never been defective, or as if the entries had been made at the proper term.

3. The records of a court, upon matters within its jurisdiction, when offered in evidence, cannot be impugned by counter evidence.

APPEAL from an interlocutory order, at Fall Term, 1844, of BRUNSWICK; Bailey, J.

Strange for plaintiffs.

W. Winslow for defendants.

At March Term, 1837, of Brunswick County Court administration on the estate of J. Corbitt, deceased, was granted to the plaintiff, Nathaniel Galloway. John McKeithen, who opposed it, took an appeal to the Superior Court. At June Term, 1837, it was ordered that the administration should be granted to the said Nathaniel Galloway and his wife, Penina, on their giving bond in the penalty of $8,000; and that a writ of procedendo issue to the county court to carry this order into effect.

The writ was accordingly issued; and the records of the June Term, 1837, of the county court show, in their present form, that the letters of administration were ordered and a bond taken in obedience to the writ of procedendo. On 5 December, 1838, the plaintiffs issued their writ in this case in detinue against the defendants, returnable to Spring Term, 1839, to recover a slave, the property of the intestate, detained by the defendant subsequent to the death of the (13) intestate. To this action the defendant pleaded non detinet. On trial at Fall Term, 1844, the defendant objected to the plaintiffs' recovery, because, as he alleged, they were not the administrators of Corbitt at the date of the writ. The defendant, in support of this objection, produced in evidence the records of the county court of Brunswick at December Term, 1842, in which it is stated that the said county court, at June Term, 1837, omitted to comply with the writ of procedendo which issued to it from the Superior Court by extending the record; and, on motion, it is then ordered by the court that letters of administration issue to the plaintiffs and a bond be taken nunc pro tunc, with K. Langdon and Samuel Galloway as sureties; and that the letters and bond should have relation and bear date as of June Term, 1837. The judge thereupon nonsuited the plaintiffs, and they appealed.

We think that the judge erred in nonsuiting the plaintiffs. The county court of Brunswick, at December Session, 1842, had a right to amend any omission in the record of the same court which had taken place at June Term, 1837, by the act of the court or the clerk; and when the record was thus amended it stood as if it had never been defective, or as if all the entries had been made and completed at the June Session of 1837; for the affidavits, motions, and orders which were made at December Session, 1842 were not and ought not to have been incorporated in the amended record of the session of June, 1837. They were no part of it. Bright v. Sugg, 15 N.C. 492; S. v. Roberts, 19 N.C. 540. It appears by the transcript that the county court, at their June Session in 1837, did take an administration bond of the plaintiffs in the penalty of $8,000 with sureties approved by the said court. We think that the record of the June Session, (14) in 1837, of the county court did show that the plaintiffs were appointed, gave bond, and qualified as administrators of J. Corbitt at that term.

The records of a court upon matters within its jurisdiction, when offered in evidence, cannot be impugned by counter-evidence. Reid v. Kelly, 12 N.C. 313.

The nonsuit must be set aside and a new trial awarded.

PER CURIAM. Judgment accordingly.

Cited: Jones v. Lewis, 30 N.C. 72; Bagley v. Wood, 34 N.C. 91; Phillipse v. Higdon, 44 N.C. 382; Marshall v. Fisher, 46 N.C. 116; Pendleton v. Pendleton, 47 N.C. 137; Isler v. Murphy, 71 N.C. 438; Wall v. Covington, 83 N.C. 146.

Summaries of

Galloway v. McKeithen

Supreme Court of North Carolina
Dec 1, 1844
27 N.C. 12 (N.C. 1844)
Case details for

Galloway v. McKeithen

Case Details


Court:Supreme Court of North Carolina

Date published: Dec 1, 1844


27 N.C. 12 (N.C. 1844)

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