Akins v. Chamberlain

Decision Date19 April 1957
Docket NumberNo. 34163,34163
Citation82 N.W.2d 632,164 Neb. 428
PartiesIrene AKINS, Appellant, v. Florence CHAMBERLAIN, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. The function of a nunc pro tunc order is not to correct some affirmative action of the court which ought to have been taken, but its purpose is to correct the record which has been made, so that it will truly express the action taken but which through inadvertence or mistake was not truly recorded.

2. If the evidence is insufficient to sustain a verdict in favor of the plaintiff, the trial court may instruct a verdict for defendant or discharge the jury and dismiss the case.

3. A motion of a litigant to dismiss because of insufficiency of evidence to sustain a recovery has the identical purpose and should be treated the same as a motion for a directed verdict.

4. An order of the district court sustaining a demurrer to a cause of action and dismissing it with or without prejudice is a final order and is appealable.

5. This court cannot have jurisdiction of an appeal from the district court unless, as required by section 25-1912, R.R.S.1943, a notice of appeal is filed in the office of the clerk of the district court and the docket fee is deposited with the clerk within 1 month after the rendition of the judgment or decree, or the making of the final order, or within 1 month from the denial of a motion for a new trial timely filed in the cause.

Eisenstatt, Seminara & Lay, Omaha, for appellant.

Wear, Boland & Mullin, A. Lee Bloomingdale, Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, J.

The third cause of action in the amended petition with which this appeal is concerned, states that on June 7, 1952, appellant was a passenger in an automobile driven by her husband; that appellee negligently operated the automobile she was then driving and caused it to collide on the wrong side of the highway with the automobile of the husband of appellant; that he was thereby injured and as a result thereof lost the part of his left arm from immediately below the elbow; and that because of the injury to her husband appellant has been damaged by reason of the loss of services of her husband and loss of consortium including society and companionship which appellant would normally expect and have reason to receive by virtue of thier marital relationship.

By general demurrer appellee contested the legal sufficiency of the third cause of action to state a case against her in favor of appellant. It was, on August 30, 1956, a day of the May 1956 term of the court, sustained and a judgment of dismissal without prejudice of the third cause of action was rendered. Thereafter, on October 15, 1956, a day of the October 1956 term of the court, the district court ordered that the ruling of August 30, 1956 should be and it was 'amended nunc pro tunc as of August 30, 1956 as follows: Demurrer of defendant to plaintiff's 3rd cause of action in amended petition sustained and 3rd cause of action dismissed with prejudice.' The notice of appeal of appellant was filed November 14, 1956.

The parties to this cause disagree as to the nature and effect of the order of the trial court sustaining the demurrer of appellee and dismissing the third cause of action without prejudice. Appellant thinks it was not a final order and would not therefore have supported an appeal to this court. Appellee believes it was a final order and was appealable.

The order of August 30, 1956, was written in the journal of the court on the date it was made. This was in the May 1956 term of the court. It provoked no attention or action until October 15, 1956, which was after the commmencement of the October 1956 term of the court and more than 1 month after the entry of the order. There was no attempt to appeal from the order of dismissal of the cause of action without prejudice. There was no written application filed seeking action nunc pro tunc by the court but on October 15, 1956, it was by the court ordered 'that ruling of August 30, 1956 is amended nunc pro tunc as of August 30, 1956 as follows: Demurrer of defendant to plaintiff's 3rd cause of action in amended petition sustained and 3rd cause of action dismissed with prejudice.' The only change made was a substitution of the word 'with' for the word 'without.'

The record is convincing that the entry of the order of August 30, 1956, was strictly correct and that it truly and fully recites the precise order made in the case on that date. There is no claim made now that the court on that date intended to or did dismiss the third cause of action with prejudice. The record and the statements of appellant indicate convincingly that the journal of the court correctly records and evidences the exact order the court intended to and did make on August 30, 1956.

Appellant says it has always been her contention that there was not a valid order to appeal from 'as of the date of the August 30th entry.' The proceeding of October 15, 1956, was to amend the order of August 30, 1956, 'so that the Appellant might have an appealable order to bring before this Court.' The precise purpose of obtaining the entry of October 15, 1956, was to correct the entry of August 30, 1956, 'so that there was a dismissal upon the merits of the case, which * * * would then be a proper and appealable order.' It is simply the contention of appellant that where a court enters an order which it has no statutory authority to do, 'then that portion of the order which the court did not have authority to make is a nullity until corrected at a subsequent date.' It could hardly be made more certain that the order of August 30, 1956, was 'corrected at a subsequent date' by the substitution of a new and different order from that which was made and duly recorded on the date of the first action of the court. There was no order made on that date which was not correctly recorded. The result was that it could not be corrected nunc pro tunc because the order was correct as it was spread upon the journal. The purpose of a nunc pro tunc order is to make the record evidence the truth and not to exhibit a misrepresentation. In North Loup River P. P. & I. Dist. v. Loup River P. P. Dist., 149 Neb. 823, 32 N.W.2d 869, it is said: 'The proper function of a nunc pro tunc order is not for the purpose of correcting some affirmative action of the court which ought to have been taken, but its true purpose is to correct the record which has been made, so that it will truly record the action really had, but which through some inadvertence or mistake has not been truly recorded.' See, also, Fisher v. Minor, 159 Neb. 247, 66 N.W.2d 557; Watson Bros. Transp. Co. v. Red Ball Transf. Co., 159 Neb. 448, 67 N.W.2d 475.

The assertions of appellant that there was not a valid order to appeal from as of the date of the August 30, 1956, entry; that the purpose of the proceeding of October 15, 1956, was to amend the former so that there could be an appealable order to bring to this court; and that the fact that the time for appeal had elapsed before October 15, 1956, makes appropriate the following from Morrill County v. Bliss, 125 Neb. 97, 249 N.W. 98, 101, 89 A.L.R. 932: 'It is obvious from the history of this case that the purpose in vacating the original decree and reentering the same decree was to extend the time for perfecting an appeal. The legislature has general power to fix the time limit for taking an appeal, and having prescribed such time, the trial court has no power to extend the time directly or indirectly.' The order of October 15, 1956, did not extend the time within which to prosecute an appeal in this case. It is neither significant nor important.

The argument of appellant is that the words in the order of August 30, 1956, 'and said Third Cause of Action dismissed without prejudice' were superfluous since the court had no authority to make such a decision under the state of the record; that the demurrer assailed the third cause of action for insufficiency of statement of facts to constitute a cause of action; and that an action may be dismissed without prejudice only upon five statutory grounds and that failure of the petition to state a cause of action is not one of them. The gist of this claim is that the order of the court was effective only to sustain the demurrer and that such an order is not appealable. The conclusion is undeniable if the premise...

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