On Petition for Rehearing.
Jordan, J.Appellant in this case and also appellant in the appeal of Macy v. Board, etc. (1908), post, 707, have both petitioned for a rehearing in the respective cases. They unite in a joint presentation of the reasons and arguments for a rehearing, hence the questions as the same are herein determined upon the petition now under consideration will control in Macy v. Board, etc., supra.
Appellant expressly waives the reconsideration of the constitutional validity of the act of 1899 (Acts 1899, p. 73, §5903 Burns 1908) “concerning the construction■ of courthouses,” and predicates his right to a rehearing (1) upon the ground that we erred in sustaining the petition of appellees to transfer the cause from the Appellate Court to the Supreme Court under the second subdivision of §1394 Burns 1908, Acts 1901, p. 565, §10; (2) on the omission or failure of the court to decide certain propositions at the former hearing. We take up these questions in their order.
*4227. 8. *421Counsel argue that the petition filed by appellees to transfer the case from the Appellate Court was insufficient, for *422the reason that it did not state the particular grounds relied upon for transfer. If this were true, then appellant should have raised that objection while the petition for transfer was pending. It is too late now to make the objection, and in no event could any deficiency in the petition to transfer the case afford appellant ground for a rehearing. In passing, however, we may suggest that the petition in question assigned as grounds for transfer: (1) That the opinion of the Appellate Court contravened a ruling precedent of the Supreme Court; (2) that a new question of law'was involved and decided erroneously. The petition further stated that, “for more particular statements of grounds relied upon, appellees make the following statement. ’ ’ Following this a part of the opinion of the Appellate Court was set out to disclose wherein ruling precedents of the Supreme Court had been contravened, etc. An examination of the opinions given by the Appellate Court in the decision of this cause, both at the original hearing and upon the petition for rehearing, fully disclosed that ruling precedents of the Supreme Court had been contravened. The cause was transferred, not for the purpose of overthrowing the statute involved because of its invalidity, but for the reason that the opinions of the Appellate Court contained wrong declarations of legal principles upon the points therein decided, declarations which contravened ruling decisions or precedents of the Supreme Court. Barnett v. Bryce Furnace Co. (1901), 157 Ind. 572; Craig v. Bennett (1901), 158 Ind. 9; Klein v. Nugent Gravel Co. (1904), 162 Ind. 509.
9. When the case was transferred the judgment of the Appellate Court was vacated, and the cause was then pending in the. Supreme Court in like manner and to all intents and purposes as though it had been appealed directly to the latter court.
The two questions which counsel for appellant assert were passed at the former hearing, without being given consider*423ation, are: First, that the contract between the Board of Commissioners of the County of Miami and Lehman and Schmitt (appellees herein), for the preparation of the plans and drawings for the new court-house, was entered into on December 18, 1905, at a time when the board was not lawfully in session. The second question relates to the validity and availability of appropriations made by the county council. Under the contract made on December 18, 1905, between the board of commissioners and appellees, in regard to their fees and services as architects, the allowance of $2,550 to appellees was made by the board on February 5, 1906. From the order of the board making this allowance appellant Kraus appealed to the circuit court, and from the judgment of the latter he appealed to the Appellate Court. Upon the question, that at the time the board made the contract with appellees it was not legally in session, the following are the material facts as disclosed by the record: On December 8, 1905, the Board of Commissioners of the County of Miami was holding its regular December session, as authorized by section fifty of an act ‘ ‘ concerning* county business ’ ’ (Acts 1899, p. 343, §5967 Burns 1908). This section provides that “in every county in this State there shall be a regular session of the board of county commissioners, beginning on the first Monday of each calendar month, and continuing only so long as the necessary business of such session absolutely requires.” On December 8 the record of the board’s proceedings, as entered by the county auditor,.recites: “It is hereby ordered by the board that they meet in special session on December 15, 1905, and the board adjourns until court in course.” It appears that the board again convened on December 15, 1905, and some action was taken in regard to the plans for the new court-house. The caption of its proceedings, as shown by the record entered on the latter day, is: “Commissioners’ Court in Regular Session, the same being December 15, 1905.” The record further discloses that after convening on Friday, December 15, the board ad*424journed until December 16.- On the latter day the board met and adjourned until Monday, December 18, 1905. At the meeting on this latter date the board and appellees entered into the contract in controversy for the preparation of the drawings and plans for the court-house, and for superintending its construction. Appellees, according to this contract, were to be paid for their fees and services by a percentage as therein fixed and provided. The board again adjourned from day to day until December 20, 1905. At this meeting the board appears to have discovered that the order of adjournment on December 8, 1905, had been incorrectly entered, and, for the reasons as stated, it corrected the same by ordering that the entry of the proceedings had on said December 8, 1905, and the adjourning order as made on that day, be entered nunc pro tunc as follows: “The board having under consideration the matter of the contract with Lehman and Schmitt, architects, for the new court-house, and not being fully advised in said matter, for the purpose of fully investigating said Lehman and Schmitt now adjourn the present December term until December 15, 1905. It is therefore now ordered that the board meet in regular session again on December 15, 1905, to finish the business now under consideration pertaining to said contract with Lehman and Schmitt.” On December 21 the board again convened pursuant to adjournment, and approved the bond of appellees.
The insistence of counsel for appellant is that the contract between the county and appellees, entered into on December 18, 1905, at the meeting of the board of commissioners held on that day, was void, for the reasons, .(1) that “the board of commissioners having adjourned on December 8, 1905, ‘until court in course,’ was without power to reconvene for any purpose whatever until the first Monday in January, 1906, unless convoked by the auditor; (2) that the order of the board on December 8, 1905, that it meet in special session December 15, 1905, was inoperative and void; *425(3) because under section fifty of the county reform law the monthly session of the board terminates with its adjournment without day, and continues only so long as the necessary business of such session absolutely requires.”
10. 11. It must be remembered that appellant does not make a direct, but a collateral, attack on the proceedings and order of the board of commissioners. There is nothing going to show that the sessions or meetings of the board in controversy were held in defiance of law. The December regular session of the Board of Commissioners of the County of Miami, under §5967, supra, might have been continued until the close of that month, provided the necessary business of the session absolutely required. As to whether the necessary business before the board required the continuance of the term until the close of the month was a question for the determination of the board. It is disclosed by the nunc pro time entry that, during the regular December session, on the 8th day of that month, the board adjourned to meet again in regular session on December 15, and that thereafter successive adjournments or recesses were ordered by the board from day to day until December 21, 1905. Appellant’s counsel apparently place much stress upon the entry made by the county auditor on December 8, showing that it was ordered by the board that it meet in special session on December 15, 1905, and that the board then adjourned “until court in course.” This entry it appears was not right, and was corrected, as shown, by the nunc pro tunc entry ordered by the board for the purpose of making the record of its proceedings speak the truth. So far as the questions involved in this case are concerned, this incorrect entry is of no material influence or effect, for it will be seen that the record of the board of commissioners, as corrected and entered nunc pro tunc, disclosed that the board on December 8, 1905, adjourned to meet on December 15, 1905, not in special session, but in regular session, to complete the business under consideration *426pertaining to the matter of the employment of appellees.. It is well settled that boards of county commissioners possess the power to correct or supply their records by nunc pro tunc entries in order to make them speak the truth. Tombaugh v. Grogg (1896), 146 Ind. 99; Everett v. Deal (1897), 148 Ind. 90.
It was for this purpose that the board exercised the power of ordering the nunc pro tunc entry as it did. As a general rule, where a record has been entered nunc pro tunc, it must be accepted and regarded to the same extent as though it had been entered at the proper time. Leonard v. Broughton (1889), 120 Ind. 536, 16 Am. St. 347; Mayer v. Haggerty (1894), 138 Ind. 628; City of New Albany v. Endres (1896), 143 Ind. 192, and authorities cited.
12. Looking to and considering the nunc pro tunc entry herein it is made manifest that the board of commissioners on December 15, 1905, met pursuant to its order of adjournment, and was lawfully in regular session on that date and also on December 18, 1905. The board, in the absence of some statutory provision to the contrary, had the power, at its regular session, to adjourn from day to day or to adjourn to meet on a subsequent day in such term until the business before it was completed. Board, etc., v. Brown (1867), 28 Ind. 161; 7 Am. and Eng. Ency. Law (2d ed.), 982, and authorities cited; 11 Cyc. Law and Proc., 394, and authorities cited.
Such an adjourned meeting operates as a continuation of the former meeting of the board at which the order of adjournment is made, and any business transacted at such adjourned meeting is as legal as though it had been transacted at the meeting or session of which it is a continuation. Stockton v. Powell (1892), 29 Fla. 1, 10 South. 688, 15 L. R. A. 42, 52; Butterfield v. Treichler (1901), 113 Iowa 328, 85 N. W. 19; Town of Waterville v. County Commissioners, etc. (1871), 59 Me. 80; 11 Cyc. Law and Proc., 396.
It follows under the facts and the law applicable thereto *427that the Board of Commissioners of the County of Miami legally convened in regular session on December 18, 1905, at which timé the contract in controversy was entered into between the county and appellees, and the contract cannot be said to be impressed with any invalidity upon the ground that the board was not lawfully in session at the time it was executed.
13. In respect to the second question raised by appellant, in regard to the invalidity of the appropriation made by the county council of Miami county, briefly it may be said that it appears that at the regular September session, 1905, of the county council, upon estimates made by the board of commissioners, appropriations were properly made by ordinance for the construction of the new court-house, and authority was also granted for the borrowing of money for that purpose and for the issuing of the bonds of the county. Among these appropriations was one for the sum of $7,000 for the payment of the fees and services of architects in relation to the building of the courthouse. This appropriation was made available for the year 1906. At a special or called session of -the county council in October, 1905, an attempt appears to have been made by that body to annul or repeal, by a mere resolution, that part of the ordinance appropriating said $7,000. It is settled that the ordinance appropriating the $7,000, adopted by the council at its September session, could not be repealed by passing a resolution, as was done by the county council. If the council had the power to rescind or repeal this ordinance at its special session held in October, it could exercise such power only by an ordinance, and not by a resolution. Swindell v. State, ex rel. (1895), 143 Ind. 153, 163; Chicago, etc., R. Co. v. Town of Salem (1906), 166 Ind. 71, and authorities cited; Ristine v. Clements (1903), 31 Ind. App. 338.
It follows, therefore, that the attempt of the council to repeal by resolution the appropriation of $7,000 was, for the *428reasons herein stated, ineffectual and of no avail, and the amount so appropriated by the council stood, on December 18, 1905, at which time the contract in question was made, to the extent of that amount, as an appropriation already made, within the meaning of §5937 Burns 1908, Acts 1899, p. 343, §20, by the council for the payment for the services of architects arising out of and in relation to the construction of the court-house, and was available for such purpose on February 5, 1906, the time the allowance of $2,550 was made to appellees by the board of commissioners. Board, etc., v. Mowbray (1903), 160 Ind. 10.
14. Counsel assail the validity of the additional appropriation of $14,000, made at said special session of the county council, which was to be available in 1905, but it is not essential that we enter into a consideration of their objections interposed to this latter appropriation, for, as we view the question, so far as this case is concerned, the contract in controversy is at least a valid obligation, under §5942 Burns 1908, Acts 1899, p. 343, §25, to the extent of the appropriation of $7,000. Board, etc., v. Mowbray, supra.
We are satisfied upon the consideration of all of the material points involved in this cause that appellant has failed to maintain his appeal. Petition for rehearing is overruled.