(dissenting).
I cannot, in good conscience, concur in the majority opinion, and I consider the question of such importance as to justify a dissenting opinion.
Here is a judgment for $25,000 plus $2,-500 damages on the supersedeas bond and large court costs. By reason of an entrapment by court officials, the appellant is denied a review of the case because of what the majority opinion truly regards as fraud and deceit perpetrated by the court reporter and the deputy court clerk, sanctioned by the trial judge. An innocent litigant and its lawyer who, beyond question, have been diligent ought not to suffer through the dereliction of officers of the court. The successful party, who likewise was innocent of the irregularity, ought not to be permitted to profit thereby. This court should not deny the right of review if it can possibly be avoided within any reasonable construction of the procedural law. Especially is this true when a cursory examination of the record reveals what I consider an error in the instructions so prejudicial as to be tantamount to a peremptory against the defendant.
Regardless of these consequences, I think the opinion is unsound and opens up the law so that any party at any time may present evidence in this court to attack a judgment collaterally. Time and again this court, as all others have done, has written concerning the necessity of maintaining the stability of final orders and of the right of parties to rely upon them. We have just as often held that such judgments are to be accepted as true and conclusive and cannot be attacked in the appellate court except by an appeal where an appeal is the proper remedy. Thus, it was said in Simpson v. Antrobus, 260 Ky. 641, 86 S.W.2d 544, 545: “The general rule is that a court of record speaks by means of its record only, and an entry made by the clerk with the authority of law must be regarded as a conclusive record and cannot be explained or impeached by other evidence. In other words, the record of a court imports verity and cannot be contradicted by parol evidence.’’
This is a final order. It is not void. It may be voidable, but a collateral attack on an erroneous order is never permitted. White v. White, 294 Ky. 563, 172 S.W.2d 72; Francis v. Sturgell’s Ex’x., 253 Ky. 261, 69 S.W.2d 357.
In Helm v. Hoke Co., 173 Ky. 525, 191 S.W. 269, cited in the majority opinion, and which is so like the present case, the irregularity was shown on the face of the record. That has always been so when we have sustained a motion to strike the bill of exceptions. In none of the cases was involved an order of court regular in all particulars. The proper way to challenge such an order upon some extraneous ground is by a motion in the trial court to set it aside. There is nothing in this record indicating that any such motion was made except a denied allegation in the original suit for a writ to prohibit the circuit judge from re-certifying and refiling the bill of exceptions after the time for doing so had expired. The effect of the opinion is to receive evidence in this court and to act upon such evidence to impeach and vacate an order which on the record was regularly entered and signed. It is a definite, unconditional and unequivocal statement that a completed bill of exceptions was filed in time. But the majority say, upon evidence aliunde, that this is not true; that what the order purported to file was non-existent. That is usually the case in any attack upon an order of record, that is, it is untrue.
Let it be remembered that the time of approval or the certification of the document is secondary and not of primary import-*795ancc, for that may be done even after the record has been filed in this court. Mann v. Moore, 112 Ky. 725, 66 S.W. 723; Allen v. Wigginton, 309 Ky. 279, 217 S.W.2d 632. The controlling thing is the filing and time of filing the bill of exceptions. Commonwealth By State Highway Commission v. Castle, 293 Ky. 309, 168 S.W.2d 1018; Kesselring v. Wakefield Realty Co., 306 Ky. 725, 209 S.W.2d 63. Here, the order recites it was filed in time. That is all the lawyer had to go by and he had every right in the world to rely upon that order. It is not only a dangerous thing to hold otherwise but makes the practice of law extremely hazardous. Every lawyer must now check the record to see that every order is supported by the papers upon which it is based. It is a common practice to enter judgments as of the last day of a term of court which were rendered later and were not in fact in existence on the date shown, but that date is regarded as conclusive and cannot be questioned in this court. Supreme Tent of Knights of Maccabees of World v. Dupriest, 238 Ky. 352, 38 S.W.2d 241; Crook v. Wilson, 313 Ky. 680, 232 S.W.2d 849. The same is true in other instances, the date shown in the record as that on which the judgment was entered being conclusive. Mitchell v. Demunbrum, 300 Ky. 477, 189 S.W.2d 682; Avery v. Davenport, 300 Ky. 865, 190 S.W.2d 663. I fear the effect of the majority opinion is to overrule that well settled law.
A recital in a judgment of a jurisdictional fact imports absolute verity and cannot be questioned collaterally or outside the record. Siler v. Carpenter, 155 Ky. 640, 160 S.W. 186; Wolverton v. Baynham, 226 Ky. 214, 10 S.W.2d 837; Newhall v. Mahan, 245 Ky. 626, 54 S.W.2d 26; Warfield Natural Gas Co. v. Ward, 286 Ky. 73, 149 S.W.2d 705. I think the recital that a bill of exceptions was approved and filed is in the same class.
In Carter Coal Co. v. Clouse, 163 Ky. 337, 173 S.W. 794, there was an order filing the transcript of evidence in time. At a later day, beyond that fixed for filing,, orders were entered showing that the bill and transcript were then examined, approved and filed. The motion was made in this court to strike the documents because the stenographer’s certificate bore a date later than that fixed 'for filing. We held that this could not be used to impeach the verity of the first order.
It is generally held that the trial court exercises a discretion as to matters relating to the making and filing of the bill of exceptions and its discretion will not be disturbed on appeal unless it has been abused. 5 C.J.S., Appeal and Error, § 1634, p. 545. A bill of exceptions as approved by the trial judge is conclusive, and this court is bound by the bill as it appears in the record. Louisville Trust Co. v. Heimbuecher, 252 Ky. 217, 66 S.W.2d 96; Castle v. Allen, 274 Ky. 658, 120 S.W.2d 219. It is not subject to impeachment or contradiction by means of affidavits either filed in the record or sent here. Pendergrass v. Coleman, 207 Ky. 783, 270 S.W. 65; Consolidated Coach Corp. v. Garmon, 233 Ky. 464, 26 S.W.2d 20; Butcher v. Corbin Hdwe. & Furniture Co., 244 Ky. 632, 51 S.W.2d 931.
What the judge did in the instant case was to prematurely approve an incomplete transcript. The authenticity and accuracy of the completed transcript are not questioned in any way. The approval and filing of a skeleton bill of exceptions which contains only its formal parts at the time it is signed by the judge with a parenthetical direction to the clerk to copy or incorporate designated evidence or documents or other parts of the record in the bill is generally regarded as acceptable. 4 C.J.S., Appeal and Error, §§ 821, 826, pp. 1308-1312.
My acquaintance with the practice is that it is customary throughout the state for the formal bill of exceptions to omit the instructions or other instruments and merely to put in it such a phrase as, “The clerk will here copy” the designated papers. This court has held this to be a proper way of making up a bill, and what is inserted will be accepted, at least in the absence of a showing that instructions embodied in the bill are not those offered, given and refused. City of Ashland v. Williams, 203 Ky. 300, 262 S.W. 273, and cases cited therein.
*796The original instructions given and refused in the present case were in the file and record. Filling' up blanks in the draft of a judgment is considered clerical. So where the judge leaves blank pages in front of his signature to be filled in by judgments or information, the record cannot be impeached.
Now, there was in fact a record of the evidence in existence when the order was made. Part of it was in typewriting and the rest of it in shorthand notes. The official record is the stenographer’s notes, at least until they have been transcribed. KRS 28.430; Meadors v. Commonwealth, 281 Ky. 622, 136 S.W.2d 1066. I take it if at the time the certificate was signed and the order entered that all the record had been typewritten, though it was not actually in the hands of the judge, and the certificate had been later bound with that transcript, the attack upon the record in this court would not be entertained for a moment.
It is not stretching the construction of the .occurrence to say the trial court regarded the tendering of the certificate as the tendering of a bill of exceptions, which he well knew, or would have known had he acted with full knowledge of the situation, would be attached and filed within a few days. Where a bill of exceptions is tend-dered in time, the court may file it later, even after the expiration of the time fixed for filing. Oliver v. Muncy, 271 Ky. 15, 111 S.W.2d 392. The subsequent completion of the work of transcribing the notes and acceptance by the trial court through its clerk as being the official record may be regarded as of the same character as the bill of exceptions. ’ Smalling v. Shaw, 144 Ky. 458, 139 S.W. 779.
In the Smalling case, .a bill timely tendered in December was so defective, the judge refused to approve or to file- it. There was no order .showing the disposition, either approving or disapproving or signing of the bill,' and there was nothing in the bill to show either- of those facts. But time was given to a .special January term for any motions pt orders in the case. At that term an order recited the reason why the court had refused to sign the bill in December. It was because it did not contain the evidence and for other imperfections. The extension of time had been given to “correct [said] bill or present a bill of exceptions.” After the time had expired, the judge entered an order filing a new bill, regarding it as but a correction of the defective one, although it appears to have been entirely rewritten. The order filing the bill recited "that the judge found that the only paper of the old bill of exceptions that was found in the new bill was the back or outside sheet which contained the indorsement showing that it had been offered and tendered to be fied in court at the December term.”
This court refused to strike that substituted bill of exceptions, saying, among other things, “When the judge took possession of the original bill at the December term, and failed to make some disposition of it, the appellant was helpless. He could do nothing but wait for the court’s action. The order entered on the fifth day of the special January term, which attempted to operate as an order of the sixth day of the preceding December term, and recited what then occurred regarding the judge’s refusal to sign the bill, was of no force or effect. It cannot be treated as a nunc pro tunc order for that purpose, for the reason that there was no memorandum of any kind entered at the December term upon which a nunc pro tunc order could be based at the succeeding January term.”
Both documents were filed in the record of the appeal. This court regarded the new bill of exceptions to be a mere correction of the original bill and accepted the original tender and certification and order as sufficient, although there was in fact only a defective skeleton, and only the back or outside sheet containing the: indorsement of tender was in the new and completed bill.
The Nebraska case of Curran v. Wilcox, 10 Neb. 449, 6 N.W. 762, is like our case of Smalling v. Shaw, 244 Ky. 458, 139 S.W. 779) in tile fact that the court reporter’s transcript was worthless. The Supreme Court, of that state held that because the attorneys had relied on the court steno*797grapher, the appellant was entitled to a new trial, saying, “Were it otherwise, the proceedings of the reporter would become a snare for the unwary. * * * The law will not permit the plaintiff to be prejudiced in his rights by * * * the failure of an officer of the court to do his duty.” '[10 Neb. 449, 6 N.W. 763]
And in the Wyoming case of Richardson v. State, 15 Wyo. 465, 89 P. 1027, 1030, 12 Ann.Cas. 1048, the stenographer upon whom the party relied was unable to complete the transcript in time, but what had been completed was filed and withdrawn to be finished after the time had run out. But he lost those papers as well as his untran-scribed notes. The court held the party was entitled to a new trial because of his inability to perfect his record on appeal. The court aptly said, “There is no more reason for permitting a party to be deprived of his legal rights through a failure or a refusal of the official stenographer to perform . his duties than through the failure or refusal of the judge or any other officer of the court to perform a duty imposed by law.”
In Oliver v. Muncy, 271 Ky. 15, 111 S.W.2d 392, a party tendered ⅜ narrative form of a bill of exceptions within the time. Before its approval and after the expiration of the jurisdictional time for filing, the party appealing produced a stenographer’s transcript of the evidence. We held it proper for the court to approve that transcript and file the same as being a corrected bill of evidence. Of like effect is Turner v. Shropshire, 285 Ky. 256, 147 S.W.2d 388.
With reference to the general proposition that the appellant should not be deprived of his right of review bécause of the irregular action of the court, I think we have a good and ample precedent upon which the right may rest. In Clover Farm Dairy Co. of Memphis, Tenn. v. Gillum, 222 Ky. 20, 299 S.W. 1065, a party had lodged a bill of exceptions in the clerk’s office within the time allowed but through no fault of his own, though diligent, was unable to get a'transcript of the evidence to go along with it. Nor was he able to get an extension of time because of the 'illness and absence of the judge. After the time had expired for filing, the trial court nevertheless granted further time and the . transcript and bill were thereafter filed Upon analogous cases, this court .refused to strike the bill or transcript.
The court has properly given a liberal construction and application of the law respecting the time of filing of an appeal. It is our rule that if an incomplete record has been filed’ in good faith within the ' prescribed time and “the ends of justice will be served by allowing an additional or supplemental transcript to be filed” it will be permitted upon proper showing. Wilhoit v. Liles, 300 Ky. 564, 189 S.W.2d 851, 853. And in Holmes v. Clark, 274 Ky. 349, 118 S.W.2d 758, 759, 761, where there was a bona fide mistake between counsel with respect to filing an appeal in time, the court felt “it would be improper to apply the strict rule of practice to the facts so developed,” and entertained the appeal.
In Clark v. Mason, 264 Ky. 683, 95 S.W.2d 292, 294, “by reason of the peculiar facts and circumstances,” the court treated as part of the record a bill of exceptions not filed in time in the circuit court. Of like effect is Gladdish v. Southeastern Greyhound Lines, 293 Ky. 498, 169 S.W.2d 297.
Finally, the judiciary has a reserved inherent power to relax the Code provisions as to its own procedure and rules where to enforce those provisions would result in thwarting the administration of justice. Burton v. Mayer, 274 Ky. 263, 118 S.W.2d 161; Commonwealth ex rel. Attorney General v. Furste, 288 Ky. 631, 157 S.W.2d 59.
Therefore, even under the conception of the majority opinion — that the'motion to strike the bill of exceptions is not an attack upon the order of the court and holding its recital may be ignored, but is an attack only upon the certification and approval of the instrument which thé order recites as then being filed — I think this court should regard what was done as being within the discretion’ of the trial judge, irregular though it was, and the motion to strike should be overruled.
*798Dissenting opinion by Judge SIMS on the modified opinion of the majority.
I think a recitation of the record and statement of the decisions of this court, as consistent as they are numerous, justify my disagreement with the modification of the opinion relating to the nunc pro tunc order. It disregards the order upon two grounds, viz. (1) the circuit -court was without jurisdiction since an appeal had been perfected and there was pending a writ “prohibiting the filing of an after prepared bill ■of exceptions;” (2j the plaintiff was indirectly endeavoring to make the instructions a part of the bill of exceptions, and “instructions cannot be reviewed by us unless they are identified by or made a part ■of the bill of exceptions.”
At the time the instructions were given, this order was entered :
“Thereupon the Court instructed the jury by written instructions numbered 1, 2 A.B. 3, A.B.C. 4, 5, 6, A.B.C.D. and 7, to which the parties by counsel excepted.”
The instructions were headed, “Instructions Given May 18, 1949,” and the Clerk .at the time stamped the document.
“Filed in Court
May 18, 1949
Karl E. Rothrock, Clerk
By R. Curley
Deputy Clerk"
As stated in the majority opinion, the -plaintiffs secured from this court a temporary writ prohibiting Judge Field from “cer-tifying and approving, or rather recertify-ing and again approving” the bill of exceptions. The defendant did not wait for final .action of this court in that proceeding but ■on November 15, 1949, perfected an appeal .by filing the record and the bill of evidence with the attached prematurely dated certificate. On January 21, 1950, the trial court •entered an order reciting the above account ■of its record and the examination of the original and stated that of itself the record furnished ample basis for the entry of a nunc pro tunc order as sought by the defendant. Accordingly, an order was entered “that said instructions numbered as .above be filed as of May 18, 1949, and as of :said date made a part of the record without being spread at large on the order book of this court.” This was simply supplying an omission from the order- of May 18, 1949, above quoted as established by the document and the clerk’s endorsement thereon.
I cannot agree that the trial court had lost the power to correct the omission. The majority opinion quotes 3 Am.Jur., Appeal and Error, Sec. 528, as to “general rule” with respect to the loss of jurisdiction as to amending proceedings, entertaining a review of a judgment and the like. I think Sec. 530 is more applicable to this case. It reads:
“Although an appeal or error proceeding, when properly perfected, deprives the trial court of jurisdiction of the case, it is generally held that the pendency of an appeal or writ of error does not deprive the trial court of the power to correct its record so that it will speak the truth and truly set forth the proceedings as they actually occurred. There are a few decisions to- the contrary, however. The pendency of an appeal does not deprive the lower court of power to correct a mere clerical error in the entry of the judgment, though the correction of the error deprives the appellant of his ground of appeal.”
That has always been the rule in Kentucky. Beginning in the year 1810, this court has recognized that it is the inherent and exclusive power of a trial court to correct its own errors of record and that the corrected record will be considered by this appellate court in its review of the case. Boyle v. Connelly, 2 Bibb 7, 5 Ky. 7; Keans v. Rankin, 2 Bibb 88, 5 Ky. 88; Speed’s Executors v. Hann, 1 T.B.Mon. 16, 17 Ky. 16; Gentry v. Hutchcraft, 7 T.B.Mon. 241, 23 Ky. 241; Dodds v. Combs, 3 Metc. 28, 60 Ky. 28, 77 Am.Dec. 150; Long v. Gaines, 4 Bush 353, 67 Ky. 353; Williams v. Thompson, 80 Ky. 325; Cochran v. Fidelity Trust & Safety Vault Co., 62 S.W. 1038, 23 Ky.Law Rep. 221; Bowman v. Ray, Ky., 80 S.W. 200; Mullins v. Mullins, 81 S.W. 687, 26 Ky.Law Rep. 442; Estes v. Bowman Bros., 182 Ky. 172, 206 S.W. 304; Higdon v. Commonwealth, 257 Ky. 69, 77 S.W.2d 400; Crook v. Schumann, 293 Ky. 334, 168 S.W.2d 1004; Simms v. Veach, *799307 Ky. 226, 210 S.W.2d 762. There are many other cases, too numerous to mention, to the same effect. See notes, 10 A.L.R. 527; 67 A.L.R. 830; 126 A.L.R. 958. And this court has recently reiterated that a supplemental record filed will be considered on a petition for rehearing and the case disposed of on that basis. Fidelity & Columbia Trust Co. v. Huffman, 259 Ky. 477, 82 S.W.2d 482. In quite an exhaustive treatment of nunc pro tunc orders in Happy Coal Co. v. Brashear, 263 Ky. 257, 92 S.W.2d 23, it is said that such an order will not be disturbed unless it is proved to be void, and the presumption of a trial court’s action in making an order book entry of an order nunc pro tunc is as great as that in favor of anything in the record.
I think the two cases cited in the majority opinion are clearly distinguishable. Indeed, it is held in one of them that after an appeal, no further steps can be taken in the trial court, “except by mwy of amendment or correction of the record”. Ohio River Contract Co. v. Gordon, 172 Ky. 404, 189 S.W. 451, 453.
Coming to the second ground which the majority say prevents the consideration of the corrected record. I cannot regard the motion for the nunc pro tunc order as an effort to “wheelbarrow” the instructions into this court or as being an indirect endeavor, “to make the same a part of the bill of exceptions, all at a time when the court below had lost jurisdiction of the case, except in a very limited way”, nor agree with the holding that because the instructions are not “identified by or made a part of the bill of exceptions” they cannot be considered.
The clerk’s record of the orders of the court is never a part of the bill of exceptions. Sec. 337, Civil Code of Practice, provides a bill of exceptions must be prepared, filed and authenticated showing a decision or ground of objection only “If the decision be not entered on the record, or the grounds of objection do not appear in the entry”. In Morton v. Chesapeake & O. Ry. Co., 240 Ky. 199, 41 S.W.2d 1110, 1111, the court said:
“We have a long line of decisions beginning with Goldsbury v. May, (1822) (1 Litt. 254) 11 Ky. 254, to the effect that instructions must be made a part of the record by order of court or by a duly authenticated bill of exceptions.”
This has been repeated many, many times. Later cases which may be cited are Gibralter Coal Mining Co. v. McCown, 242 Ky. 281, 46 S.W.2d 96; Quisenberry v. Commonwealth, 299 Ky. 390, 185 S.W.2d 669, 671. In the latter case, it is said that the provisions of the Code of Practice
“ * * * do not provide an exclusive method of authenticating instructions in order to render objections to them available on appeal. We have held in numerous opinions that it is sufficient if they are identified by an order of court.”
The majority opinion cites Gardner v. Alexander, 159 Ky. 713, 169 S.W. 466, and A. Downs & Brothers v. Fireman’s Insurance Co., 206 Ky. 316, 267 S.W. 153. They merely say the instructions in the respective cases could not be considered because they were not identified by or made a part of the bill of exceptions. In the light of the Civil Code of Practice provisions and the innumerable cases holding that this is not the only way in which instructions may be identified and brought up on appeal, the omission in those opinions of any further statement cannot be regarded as overruling all the cases that went before or as destroying the force of all the cases that came afterward which declare it is sufficient that same be filed by an order of the court and made a part of the clerk’s record.
It is well settled that where there is an error shown in the record it may be considered even where there is no bill of exceptions. Thus, it is said in Postal Telegraph-Cable Co. v. Louisville Cotton Oil Co., 136 Ky. 843, 122 S.W. 852, 854, 125 S.W. 266:
“It is not necessary to put in the bill of exceptions the pleadings, orders of court, or any motion or paper that is mentioned in the orders of court as having been offered or filed as a part of the record, although it *800may not be copied on the record book, as the fact that it is there mentioned is sufficient evidence of its identification tO' make it a part of the record for this court when copied by the clerk accompanied by his certificate.”
The office of a bill of exceptions is to incorporate in the record that which has not been made a part thereof by court order. It is not necessary for the instructions or the exceptions thereto to be included in the bill of exceptions where they are made part of the record by an order of court as was done in this instance by the nunc pro tunc order Judge Fields entered. The modification of the original opinion by the majority so far misconceives the purpose of a bill of exceptions that I feel the opinion will not stand long, but that will not ameliorate the grave injustice done in the present case.
I regard the instructions to be before us. They contain what I consider a gross error in that they placed upon the railroad company the duty to give warning of the approach of the train to the crossing by both blowing the whistle and ringing the bell. The statute only requires that one or the other be done. KRS 277.190. If the statement in the appellant’s brief be supported by the stricken bill of evidence, there was no claim by any witness for either party that the bell was rung, hence, the instruction was tantamount to a peremptory for the plaintiffs. If we presume there is such evidence, the instruction is still prejudicial and erroneous.
I am authorized to say Judge HELM joins me in this dissent.
Judge THOMAS was absent and did not sit in the case.