Florida Development Co. v. Polk County Nat. Bank

• Decision Date: 10 January 1919
• Citation: 80 So. 560,76 Fla. 629
• Parties: FLORIDA DEVELOPMENT CO. et al. v. POLK COUNTY NAT. BANK.
• Court: Florida Supreme Court

80 So. 560

76 Fla. 629

FLORIDA DEVELOPMENT CO. et al. v. POLK COUNTY NAT. BANK.

Florida Supreme Court

January 10, 1919

On Petition for Rehearing, February 4, 1919.

On Petition for Rehearing.

Error to Circuit Court, De Soto County; F. A. Whitney, Judge.

Action by the Polk County National Bank against the Florida Development Company and O. M. Crosby. Judgment for plaintiff and defendants bring error. Affirmed, and motion by plaintiff to amend nunc pro tunc the final judgment denied.

Browne C.J., dissenting.

Syllabus by the Court

SYLLABUS

In an action at law upon a written instrument for the payment of money, when a default has been duly entered against the defendant for want of appearance or for failure to plead or demur, the plaintiff, upon the production of the instrument sued on and the filing of the same in the cause, is entitled under section 1425, General Statutes of Florida 1906, to a judgment against the defendant. It then becomes the duty of the clerk to assess the amount which the plaintiff is entitled to recover and enter up judgment for the same, and in doing so he acts in a ministerial capacity.

The court in which a cause is pending has the power to enter a judgment nunc pro tunc.

Where there has been delay in entering a judgment, and such delay was not caused by the laches or negligence of the party entitled to the judgment, but by the error or misprision of the court or its clerk, an entry nunc pro tunc of the judgment will be made; the interests of third parties not being affected, and justice requires the entry to be made.

An entry of a judgment nunc pro tunc may be made against a corporation 22 years after the judgment should have been entered, and several years after the corporation has become dissolved.

COUNSEL Treadwell & Treadwell and Brown & Jones, all of Arcadia, for plaintiffs in error.

John W Burton, of Arcadia, and John C. Cooper & Son, of Jacksonville, for defendant in error.

OPINION

PER CURIAM.

This cause having been submitted to the court at a former term upon the transcript of the record of the judgment aforesaid, and argument of counsel for the respective parties, and the record having been seen and inspected, and the court being now advised of its judgment to be given in the premises, it seems to the court that there is no error in the said judgment.

It is therefore considered, ordered, and adjudged by the court that the said judgment of the circuit court be, and the same is hereby, affirmed.

TAYLOR, WHITFIELD, ELLIS, and WEST, JJ., concur.

BROWNE, C.J., dissents.

On Petition for Rehearing.

ELLIS J.

The Polk County National Bank in January, 1917, filed its motion in the circuit court for De Soto county to amend nunc pro tunc the final judgment obtained by the movant against the Florida Development Company and O. M. Crosby in September, 1895, in a cause then pending in the circuit court for said county.

The Florida Development Company and O. M. Crosby appeared by their attorneys in opposition to the motion and urged that the charter of the Florida Development Company expired by limitation of law in 1911; that while the Polk County National Bank in 1895 did 'recover a judgment against the Florida Development Company and the said O. M. Crosby' it had assigned its interest in the judgment to another, and therefore is not a party in interest; and that the judgment sought to be amended appears on its face to have been barred by the statute of limitations.

On January 18, 1917, the court on the hearing of the motion entered an order 'amending the judgment nunc pro tunc.' To this judgment of the court a writ of error was taken in behalf of the defendants the Florida Development Company and O. M. Crosby.

The judgment was affirmed by this court January 10, 1919, without written opinion.

The plaintiffs in error by petition now ask for a rehearing. The grounds urged are that this court failed to consider that the judgment amended was entered by the clerk of the court who under the statute (section 1035 of the Revised Statutes 1892) had no authority to include in the judgment an allowance for attorney's fees, which nevertheless was done, so the judgment was void; that the judgment sought to be amended was more than 20 years old; that there is no provision of law which authorizes the court to amend a judgment 'rendered' by the clerk during vacation; that when the nunc pro tunc order was made the Florida Development Company had ceased to exist by limitation of its charter and its debts were thereby extinguished.

The bill of exceptions shows that the movant offered in support of its motion a certified copy of the judgment entered by the clerk on the 16th day of September, 1895. This judgment is set out in full in the case of Smith v. Wilson, 71 Fla. 624, 71 So. 919. In that case Smith, the plaintiff in error, contended that the 'so-called' judgment was not a judgment of the court, 'but a mere finding of the clerk as to the defendant's indebtedness to the plaintiff and the amount due and was not such an adjudication as concluded the matter in controversy between the parties upon which legal process for its enforcement could issue.' We held that an inspection of the deocument showed the names of the parties, the court in which the action was pending, that the defendants had been duly served with process and had appeared, but had failed to plead or demur; that a default had been duly entered against them for failure to plead or demur; that the action was upon a written instrument for the payment of money; and that the plaintiff had produced and filed the same; and that the clerk undertook to 'enter' final judgment against the defendants under section 1035, Revised Statutes of 1892 (section 1425, General Statutes of 1906); that, assuming that the clerk acted upon the proofs submitted in assessing the amount due, he had not exercised the power conferred by the statute to 'enter' a judgment therefor.

In other words, while all the conditions existed and were complied with which the statute provides and which entitled the plaintiff to a judgment, the failure to enter the judgment proper was a mere misprision of the clerk of the court. The declaration, the process, service, appearance, and default were all regular. The plaintiff produced and filed the instrument sued on, which was a written instrument for the payment of money. Thus far the plaintiff was charged with the duty of attending to the regularity of the proceedings. See Wood v. Bank, 1 Fla. 378.

The plaintiff was then entitled under the statute to his judgment. That it was not duly 'entered' in formal words was the fault of the clerk. Having complied with all the requirements of the statute and having submitted a cause regular in all its proceedings, the plaintiff was then entitled under the law to his judgment. In fact, the statute under such circumstances operates to produce the same situation as when a judgment is pronounced by the mouth of the court or judge after a trial upon the issues. It is the affirmation of the statute, it is the sentence and determination of the law, and depends, not upon the opinion or conclusion of a court or judge, but upon the regularity of the proceedings in a cause duly commenced in a proper forum, the due and proper entry of a default against the defendant for failure to plead or demur, and the production of the instrument sued upon and the assessment thereon by the clerk of the amount due. The 'entry' by the clerk of such a judgment is purely a ministerial function. See 1 Black on Judgments (2d Ed.) § 88, cited with approval in Parker v. Dekle, 46 Fla. 452, 35 So. 4. That the clerk had jurisdiction to enter the judgment was not denied. All the conditions were complied with; the cause was one in which the clerk was authorized to assess the amount due and enter a judgment therefor. But as we said in the Smith-Wilson Case, supra, the clerk failed to enter the judgment. If a judgment had been entered, but for an amount greater than the plaintiff was entitled to, or if it contained some mistake or irregularity, it would probably not be void, but merely voidable and subject to be cured by motion or corrected on appeal. See 1 Black on Judgments (2d Ed.) § 88; Lenoir v. Broadhead's Adm'r, 50 Ala. 58; Sherry v. Priest, 57 Ala. 410; Hastings v. Alabama State Land Co., 124 Ala. 608, 26 So. 881; Alpers v. Schammel, 75 Cal. 590, 17 P. 708; Wall v. Covington, 83 N.C. 144; Arrington v. Conrey, 17 Ark. 100; Smith v. Hood, 25 Pa. 218, 64 Am. Dec. 692; Sherman v. Nixon, 37 Ind. 153.

The authority of the court to amend judgments in such cases is generally conceded; it arises from the high equity powers of the court which enable it to correct errors and make the record speak the truth whenever the ends of justice require, said the Arkansas court in Arrington v. Conrey, supra. In the Parker-Dekle Case, supra, the court held that the action of the clerk, on testimony which he had no authority to consider in assessing the amount the plaintiff was entitled to recover, rendered the judgment as entered erroneous. The court regarded the error as fundamental or jurisdictional. In the instant case, however, the clerk merely assessed the amount due for principal and interest and ascertained that there was also due a certain sum for attorney's fees, but entered no judgment for either amount, nor for any amount, although as we said in the Smith-Wilson Case, supra, he undertook to do so.

The question in the instant case is: Had the court below power to enter the judgment nunc pro tunc? We treated the motion as one to order a nunc pro tunc entry of the judgment. The language of the motion, however, in one part is to 'amend nunc pro tunc the final judgment entered,' while in the third and...