Annotate this Case

94 S.E.2d 806 (1956)

244 N.C. 645

In the Matter of STATE TRUST COMPANY, Trustee, v. Katie B. TOMS, M. F. Toms, Charles French Toms, Mrs. Albert Toms Brown, Maurice Toms, Margaret Toms.

No. 17.

Supreme Court of North Carolina.

October 31, 1956.

*809 M. F. Toms, Jr., and Ward & Bennett, Asheville, for Katie B. Toms, appellant.

Maurice A. Toms, in pro. per.

O. B. Crowell and R. Lee Whitmire, Hendersonville, for appellee.

RODMAN, Justice.

The record presents these questions:

(1) When the original judgment roll has been lost or destroyed, is it permissible, by motion in the cause, to show that only a portion of the proceeding has been docketed and recorded and the contents of the missing portion?

(2) If so, may the loss and contents of the missing portion be established by affidavits?

(3) Is an order permitting a trustee to resign and appointing a successor void if the court does not compel the successor trustee to give the statutory bond?

(4) Should movants be denied relief because of laches?

The evidence supports the finding of fact that the original papers have been lost. The statute, G.S. § 2-42(9), requires the clerk to keep a special proceeding docket "which shall contain a docket of all writs, summonses, petitions, or other original process issued by him, or returnable to his office, and not returnable to a regular term; this docket shall contain a brief note of every proceeding, up to the final judgment inclusive."

Such a docket was kept by the clerk of the Superior Court of Henderson County. The proceeding of State Trust Company v. Katie B. Toms, or a part of said proceeding, was there recorded, namely, the petition seeking authority to resign with a detailed statement of the assets and liabilities as of February 18, 1937, showing a net principal balance of $25,055, a statement of income and disbursements from March 25, 1931, through February 18, 1937; the order of the clerk dated April 26, 1937, accepting the tendered resignation of State Trust Company and appointing Thomas H. Franks as successor trustee with a direction to State Trust Company "to turn over said assets to said Successor Trustee and to accept his receipt therefor as a complete settlement of the property on hand belonging to the estate"; a statement of principal account from February 18, 1937, through April 29, 1937, with an affidavit of the trust officer of respondent that the statement of the principal account was correct, and that the assets as listed had been delivered to Thomas H. Franks, successor trustee; a statement of income account *810 from February 18, 1937, through April, 29, 1937; and an affidavit of the trust officer of respondent that the statement was correct, and that he had paid Thomas H. Franks, successor trustee, the sum of $154.52, the balance shown in the income account.

The parties stipulated that Katie B. Toms, Maurice Toms, and Margaret Toms Scott were in 1937 served by publication; the other beneficiaries were personally served.

Movants offered the special proceeding docket, insisting that the docket constituted the judgment roll and as such was binding on the parties. They insist that the record discloses no approval of the clerk's order by the judge as required by G.S. § 36-12, nor does the order contain any provision for bond nor is there any record of a bond given by the successor as required by G.S. § 36-17. Movants assert that the docket is conclusive and cannot be supplemented, modified, or corrected.

The attack here made on the order of resignation is not a collateral attack. It is a motion in the cause in which the court, upon the assertion of respondent that all of the record has not been recorded, has the power and should determine what in fact was done.

It is to provide a permanent record and guard against loss of the original papers that the statute, G.S. § 2-42, directs the clerk to keep books in which the papers may be transcribed. The failure of the clerk to comply with the statute by neglecting to record all or a part of a proceeding does not render the proceeding void. Any interested party may, by motion, require the proceeding to be recorded and when a part of the papers has been lost without being recorded, the proceeding does not, because of that fact, lose its vitality or cease to give the protection which the complete record would afford. The power of a court to make its records speak the truth cannot be doubted. To hold otherwise would make a mockery of justice. State v. Cannon, 244 N.C. 399, 94 S.E.2d 339.

"It is well settled that in any case where a judgment has been actually rendered, or decree signed, but not entered on the record, in consequence of accident or mistake or the neglect of the clerk, the court has power to Order that the judgment be entered up nunc pro tunc, provided the fact of its rendition is satisfactorily established and no intervening rights are prejudiced." Creed v. Marshall, 160 N.C. 394, 76 S.E. 270, 271; State v. Cannon, supra; Galloway v. McKeithen, 27 N.C. 12; Mayo v. Whitson, 47 N.C. 231; Kirkland v. Mangum, 50 N.C. 313; Freshwater v. Baker, 52 N.C. 404; Pendleton v. Pendleton, 47 N.C. 135; McDowell v. McDowell, 92 N.C. 227; Oliver v. Board of Com'rs, etc., Highway Commission, 194 N.C. 380, 139 S.E. 767; 30 Am.Jur. Judgments 108. Additional authorities are assembled in the notes 10 A.L.R. 565 and 67 A.L.R. 837.

The finding by Judge Pless, "Upon due consideration of all the evidence offered by both sides and the available records in the office of the Clerk of Superior Court of Henderson County, the Court finds as a fact that the order of April 26, 1937, was approved by J. H. Clement, then Superior Court Judge * * *," is sufficient to meet the requirements of G.S. § 36-12 and is authority to the clerk to correct his minute docket to conform to the facts.

It was competent to prove by affidavit the fact that Judge Clement had made an order approving the proceeding and the loss of this order before it was spread on the minutes. This very question was debated and decided by this Court in the case of Mayo v. Whitson, supra. Nash, C. J., speaking with reference to the competency of proof by affidavit said: "When the object of the petition is considered it will at once be seen that the testimony was competent. It is the duty of the Court to see that their records speak the truth, and their general power to do so is not questioned. The Court, in discharging its duty in this particular, may hear *811 any testimony which is calculated to satisfy its judgment. It is not deciding a question of property between litigating parties, but one touching the correctness of its officer in the performance of his clerical duties. It was inquiring whether its records speak the truth? Whether its order has been obeyed? It is entitled to draw evidence from any pure source." Moye v. Petway, 75 N.C. 165; Creed v. Marshall, supra; Springs v. Schenck, 106 N.C. 153, 11 S.E. 646; Davis v. Shaver, 61 N.C. 18; Mc-Lendon v. Jones, 8 Ala. 298, 42 Am.Dec. 640.

The court's finding on competent evidence that Judge Clement by order approved the proceeding and particularly the order authorizing State Trust Company to resign and appointing Franks as successor is conclusive. The record thus corrected has the same efficacy as if the original order signed by Judge Clement had been offered in evidence.

Movants assert that the resignation authorized and settlement consequent thereon can have no validity because the bond which the clerk is directed by G.S. § 36-17 to require of a new trustee was not given, or, if given, was not recorded as required by that statute.

The clerk found: "movant did not offer any evidence tending to show no bond was given by the Successor Trustee other than the evidence hereinbefore referred to; (that is, the minute docket where the proceeding is recorded and the absence of the original papers) that it is the usual custom in proceedings of this kind for the bond to be filed in the jacket with the original papers and without being recorded." This finding of fact was reiterated by Judge Pless in the identical language of the clerk with this addition: the court "fails to find as a fact that the bond required of a successor Trustee in a proceeding of this nature was not filed with the Court."

It was stated on the oral argument that Franks, as successor trustee, had made income payments to Katie B. Toms, the beneficiary for life, until 1953. Presumably he regularly filed accounts showing his receipts and disbursements with the clerk and the beneficiaries. If such accounts were filed, they would presumably show the amounts, if any, paid by Franks as premiums and to whom paid. The record does not disclose whether Franks in fact filed any accounts nor what premiums, if any, were paid.

If it be conceded that Judge Pless should have found as a fact that Franks as successor trustee had not given bond, would that fact invalidate the settlement made by State Trust Company with Franks in 1937 in conformity with a duly approved order of a court with jurisdiction of the subject matter and of the parties?

This Court has not heretofore been called upon to decide what is the effect of the failure to give the bond specified in G.S. § 36-17. It will be noted that this section applies to executors, administrators, guardians, trustees, and other fiduciaries. All are put in the same class. No good reason appears why the rule applicable to the original appointment of such fiduciaries should not apply to the appointment of a successor. Our statutes make provision for the giving of bonds by the fiduciaries of the kind named in G.S. § 36-17.

With certain specific exceptions, a foreign executor must give bond before intermeddling with the estate. G.S. § 28-35(1). Every administrator and collector, before letters are issued, must give bond payable to the estate. G.S. § 28-34. No guardian appointed for a minor or other incompetent is permitted to receive property of his ward "until he shall have given sufficient security, approved by a judge, or the court, to account for and apply the same under the direction of the court." G.S. § 33-12.

The language of these statutes is as imperative as the language of G.S. § 36-17. Nevertheless, it has been consistently *812 held that the failure to require a bond does not under those statutes make the appointment void. It is but an irregularity relating to the qualification of the appointee. In re Estate of Pitchi, 231 N.C. 485, 57 S.E.2d 649; Batchelor v. Overton, 158 N.C. 395, 74 S.E. 20; Plemmons v. Southern R. R., 140 N.C. 286, 52 S.E. 953; Howerton v. Sexton, 104 N.C. 75, 10 S.E. 148; Garrison v. Cox, 95 N.C. 353; Hughes v. Hodges, 94 N.C. 56; Spencer v. Cohoon, 18 N.C. 27; In re Chin Mee Ho, 140 Cal. 263, 73 P. 1002.

Whether the absence of a provision in the order of April 1937 requiring the successor trustee to give bond was an error to be corrected by appeal in due time or rendered the judgment irregular need not now be determined. The time to appeal elapsed many years ago. If the judgment was irregular, movants were required to act with diligence in an effort to correct it. They could not, with knowledge of the terms of the order, the transfer of the trust fund from respondent to Franks, knowledge that he was acting as trustee, making payments of the income to the life beneficiary for nearly seventeen years, expect the court to declare its judgment a nullity. There was nothing which prevented movants during the period from April 1937 to the discovery of the defalcation in 1953 from seeking an order compelling Franks to give an adequate bond. One must be diligent in seeking the correction of an irregular judgment. Collins v. North Carolina State Highway Comm., 237 N.C. 277, 74 S.E.2d 709; Henderson v. Henderson, 232 N.C. 1, 59 S.E.2d 227; Gough v. Bell, 180 N.C. 268, 104 S.E. 535; Currie v. Golconda Mining & Mill. Co., 157 N.C. 209, 72 S.E. 980; Glisson v. Glisson, 153 N.C. 185, 69 S.E. 55; Harrison v. Hargrove, 109 N.C. 346, 13 S.E. 939.

Movants take no exception to the finding that they were properly before the court in Special Proceeding 675 which authorized Franks to sell for reinvestment a portion of the trust assets, which he received from State; Trust Company. This order was entered July 27, 1937. It contains this recital: "Whereas, on the 26th day of April, 1937, Thomas H. Franks of Hendersonville, N. G., was duly appointed successor trustee to said State Trust Company * * *"

So far as the record discloses, Mrs. Katie B. Toms never made any complaint about the failure of Franks to give bond, although she is recited as the petitioner in the proceeding filed in the summer of 1937 to sell for reinvestment part of the trust assets. Movant Maurice A. Toms merely says: "That your respondent Maurice A. Toms, being served by publication, had no immediate opportunity of checking and seeing that the statutes were followed in the said proceeding, and thereby make an attempt to preserve his interest in the said trust fund." (Emphasis added.) He avers that he did not ascertain until October 1953 that Franks had embezzled the trust fund, but he nowhere gives any indication as to when he learned that Franks had not given bond, if such is a fact. He nowhere gives any indication as to when he made an investigation or why he delayed for sixteen years in making an investigation. He did not, in July 1937, when Franks as successor trustee was applying to the court for permission to sell the very assets received from State Trust Company, offer any objection to the sale and reinvestment in a form which enabled the trustee to consummate the very embezzlement now complained of. State Trust Company was not then before the court; movant was.

This record does not indicate diligence on the part of movants. The facts found by Judge Pless are supported by the evidence. The judgment appealed from is


JOHNSON, J., not sitting.