WILLIAM SEDGWICK, PLAINTIFF AND APPELLANT,

v.

DEWITT C. DAWKINS, DEFENDANT AND RESPONDENT

Mk. Justice Westcott

delivered the opinion of the court.

In the absence of a bill of exceptions or case, this court cannot consider any matter of evidence, or of law, in the shape of instructions based upon evidence, where a knowledge of the evidence is necessary to determine its application or correctness. The evidence heard upon either of the trials, or which was considered in the disposition of the several motions in this case, is, for this reason, not before us for consideration.

Under these circumstances, the presumption of law is that there was evidence to justify the action of the court in all matters where there was an issue of fact presented for its consideration. In the absence of a bill of exceptions, we are restricted to errors apparent upon the record, the general rule being that whenever the error is apparent upon the record, it is open to revision, whether it be made to appear’by bill of *201exceptions, or otherwise. 20 How., 433; 5 Fla., 465; 11 How., 669; 6 Cranch, 221; 4 How., 131; 6 Wheat., 410. Whether it is necessary ■ under the code to note exceptions to the action of the court involving errors apparent upon the record, it is unnecessary to consider here, as we have here exceptions to all of the material action of the court subsequent to what purports to have been a judgment at the term at which the first trial occurred. As to the action of the .court at the succeeding fall term, it is here properly presented for consideration. Thus disposing of the only questions of practice which can be suggested as to this final judgment, we reach the questions presented for consideration by this record.

As to the last and final judgment of the court, we examine but one.question.

A motion in arrest of judgment was made at spring term, A. D. 1870. This motion was continued, and at fall term, A. D. 1870, the court, upon motion of the defendant, permitted him to substitute for this motion in arrest of judgment a motion for a new trial. This motion was heard and granted, and upon the new trial this final judgment was rendered. This substitution of a motion for a new trial for the motion in arrest of judgment, after the expiration of the term at which the verdict was rendered, is clearly erro'neous.

This action of the court and its result, the subsequent new trial and judgment, cannot be sustained.

A motion in arrest of judgment, made at a past term of the court, cannot be changed by amendment, or otherwise, at a subsequent term, into a motion for a new trial. The statute regulating, the practice in this respect provides: “ That no motion for a new trial, or itl arrest of judgment, shall be made, unless the party intending to make the same shall file his reasons with the clerk in writing, and cause his motion to be placed upon the motion docket within four *202days after the- verdict shall have been rendered, and during the same term ; nor shall a motion for a new trial, or in arrest of judgment, standing over from one term to another, operate as a supersedeas unless so ordered by the court.” Thomp. Dig., 351.

The motion for a new trial here was not placed on the motion docket until after the term'had expired. The motion made at the term of the trial was in arrest of judgment. At the second term the defendant was restricted to this motion, and however he may have amended by adding new and additional grounds applicable to the motion in arrest of judgment, he could not file “ in lieu of it ” a motion for new trial. This the statute clearly prohibits. The necessary consequence is that this final judgment must be reversed and the case remanded to stand upon the motion in an-est of judgment, unless the action of the court in setting aside what is claimed was a final judgment, duly rendered at Spring Term, 1870, was erroneous. This is the only remaining question.

It appears from the record that the court, upon motion of the defendant, set aside what purported to be a judgment, regularly entered, upon the ground that no such judgment “ was taken, ordered or rendered in term, and because, what purported to be a final judgment of the court, was entered by the clerk eleven days after the adjournment for the term.” The power and duty of the court thus to. make its record speak the truth is here questioned by the appellant. It is insisted that after the adjournment of the court for the term, it was beyond its power thus to open a judgment appearing-regular upon the minutes of the court.

When a final judgment has once been pronounced, and the term at which it is given has expired, neither the court nor the parties to the record have any longer any power or control over it. It then becomes a public judicial record, stamped with the seal of finality and truth, not to be affect*203<ed except when assailed upon the ground of fraud, want of jurisdiction, or other like ground. This is the frequently announced doctrine of this court. Its application to this ease, however, is not seen.

What is here affected by the action of the court after expiration of the term is not a judgment of the court; it is an' act of the clerk not authorized by law. 9 Cal., 173; 3 Texas, 515; 7 Cal., 53; 1 Cal., 429. There is nothing in this re- • cord which brings up any of the evidence heard by the court .upon this motion. Unless the record shows clearly error in matter of fact, the rule in such a case as this is that the finding of the court must be sustained. 8 Cush., 317; 2 Cush., 124; 14 John., 219; 2 Cowen, 410; 7 Cowen, 344; 7 Cush., 282; 7 Cray, 172.

The fact here, therefore, as we must consider it, is, that the clerk, after the adjournment for the term and in vacation, enters in form a judgment in a case where no judgment was rendered in term by the court. Such an act as this cannot be protected by interposing the sanctity and verity of a judicial record. The power which the court here exercised is the universally conceded power of the court to make the re- • cord speak the truth as to its own act. The court cannot be vilius estopped from inquiring whether this entry speaks the truth. Its power to perfect the proceedings according to the truth as it existed at the time of the adjournment for the term is full and complete, and the fact that verity attaches to an .act of the court is a strong reason for giving enlarged powders to ascertain whether, what purports to be an act of the court, was such. 6 Cush., 354; 7 Cush., 282; 8 Cush., 317; 14 Ark., 206; 4 Eng., 188; 6 Tenn., 8; 7 Tenn., 699; 17 Ark., 100; 3 Cowen, 44; 4 M. & S., 94; 1 Pick., 351; 3 John., 526; 4 Cowen, 71.

Neither this court nor the Circuit Court can obviate or ■ disregard the necessary legal result of the failure of the defendant to enter his motion for a new trial at the term of *204the trial. His motion at the subsequent term was too late.-. It is expressly forbidden by the statutes. The-Circuit Court., should have restricted the defendant to his motion in arrest of judgment. If the defendant was entitled to a new triáis he has failed to get it by his own laches, which neither this - court nor the Circuit Court can remedy.

The final judgment herein rendered, the order permitting'.' the defendant to file a motion for a new trial after the expiration of the term at which the trial was had, and the-order granting a new trial, are reversed, and the case is remanded to stand- for hearing upon the motion in arrest oí judgment. The costs to be paid equally by the parties.