Barber v. Briscoe

• Decision Date: 12 February 1890
• Citation: 23 P. 726,9 Mont. 341
• Parties: BARBER v. BRISCOE.
• Court: Montana Supreme Court

23 P. 726

9 Mont. 341

BARBER v. BRISCOE.

Supreme Court of Montana

February 12, 1890

Appeal from district court, Lewis and Clark county; W. H. Hunt Judge.

A. A Lathrop, for appellant.

McCutcheon & McIntire, for respondent.

BLAKE C.J.

The complaint in this action contained the name of "Sumner J. Barber" as the plaintiff, but the summons described him as "Samuel J. Barber," and notified the defendant of the amount sought to be recovered "upon a certain promissory note made and executed by said defendant on the 24th day of July, 1885, at Kane Station, Idaho territory." At the trial, upon the 8th day of December 1887, the jury returned a verdict for the plaintiff, who is styled "Sumner J. Barber." After the record of the verdict, the following entry appears: "Thereupon it is ordered that judgment be entered accordingly. Defendant, by counsel, excepts to the rendition of judgment, and given notice of intention to appeal." An alias execution was issued May 27, 1889, which recited that Samuel J. Barber recovered judgment, December 8, 1887, against John O. Briscoe, and that "the judgment roll in the action in which such judgment was ordered is filed in the clerk's office, *** and the said judgment was docketed in said clerk's office." The return of the sheriff shows that he has been unable to find any property of Briscoe. Afterwards an affidavit of the attorney of "Samuel J. Barber" was filed in the court below, which stated "that on the 8th day of December, 1887, the plaintiff recovered a judgment in said action in said court against the defendant, John O. Briscoe, *** which judgment was duly entered and docketed in the office of the clerk of said court; *** that there now remains unpaid on said judgment the whole amount thereof." Upon these and other recitals, the judge of the court below made an order, November 2, 1889, for the examination of said Briscoe, under the provisions of the Code of Civil Procedure concerning proceedings supplementary to execution. A motion was filed November 13, 1889, by said Briscoe to set aside the foregoing order. Upon the following day the plaintiff moved the court "to amend the judgment and all subsequent proceedings in said cause by inserting plaintiff's true name, 'Sumner J. Barber' in lieu of 'Samuel J. Barber.' " The court overruled the first and sustained the last motion, November 20, 1889. On the succeeding day, on motion of the plaintiff, this order was made in the court below: "It is ordered that judgment be entered herein as of the 8th day of December, A. D. 1887, on the verdict rendered herein on the said 8th day of December, A. D. 1887, for the sum of two thousand one hundred and forty-seven and 60-100 dollars, ($2,147.60,) and costs of suit; and that said judgment bear interest at the rate of ten per cent. per annum from the said 8th day of December, A. D. 1887." In pursuance of this order, a formal judgment nunc pro tunc was entered on the aforesaid verdict in accordance therewith. Up to this time no other proceedings had been had in the matter excepting those which have been mentioned in this statement of the facts. The action of the court below in authorizing the amendment by inserting the true name of the plaintiff in the papers, and the entry of the judgment nunc pro tunc, is upheld by the decisions of this court, and will not be further discussed. Mining Co. v. Rumley, 1 Mont. 201; Territory v. Clayton, 8 Mont. 1, 19 P. 293; Keene v. Welsh, 8 Mont. 305, 21 P. 25.

The contention of the appellant is that the court erred in its order that the judgment should bear interest from the 8th day of December, 1887. The statute provides that "creditors shall be allowed to collect and receive interest *** on any judgment rendered before any court or magistrate authorized to enter up the same, within the territory, from the day of entering up such judgment until satisfaction of the same be made." Comp. St. div. 5, § 1237. It is admitted that judgments at common law did not bear interest, and that this statute must be construed strictly. What was the effect of the entry of the judgment nunc pro tunc upon the day from which interest can be collected by the respondent? In Tapley v. Goodsell, 122 Mass. 183, Chief Justice GRAY says: "The technical difficulty of holding the judgment to be binding as of a date before it actually existed is no greater than has always attended every judgment rendered nunc pro tunc, and every judgment which took effect by legal relation at an earlier day than that at which it was actually entered. As Lord Mansfield was accustomed to observe, fictions of law can never be contradicted so as to defeat the ends and purposes for which they were invented. *** In the case at bar, the judgment having been legally rendered as of the former term, has the same operation, for all purposes necessary to make it effectual, as if it had been then actually entered." Mr. Freeman states the law in the following terms: "The entry of judgments or decrees nunc pro tunc is intended to be in furtherance of justice. It will not be ordered, so as to affect third persons, who have acquired rights, without notice of the rendition of any judgment." Wells v. Gieseke, 27 Minn. 478, 8 N.W. 380; Auerbach v. Gieseke, 40 Minn. 262, 41 N.W. 946. No question of this kind arises in this case. Mr. Freeman proceeds: "With the exception pointed out in the above section, a judgment entered nunc pro tunc must be everywhere received and enforced, in the same manner and to the same extent as though entered at the proper time." Freem. Judgm. §§ 66, 67. The case of Fugua v. Carriel, Minor, (Ala.) 170, which was decided in 1823 by the supreme court of Alabama, seems to be in point. The facts are not fully reported, and we use this qualified language. It appears that this was an action upon a promissory note; that a default was taken at one term, and that at the next a judgment nunc pro tunc was entered, which included interest. A writ of error was prosecuted, and the question under consideration was not presented, but the opinion treats the right to recover the interest as a matter of course, although the mode of computation, according to the tenor of the...