Bertig Brothers v. Grooms Brothers

Decision Date09 June 1924
Docket Number42
Citation262 S.W. 672,164 Ark. 628
PartiesBERTIG BROTHERS v. GROOMS BROTHERS
CourtArkansas Supreme Court

Appeal from Greene Circuit Court, First Division; W. W. Bandy judge; affirmed.

Judgment affirmed.

Block & Kirsch, for appellants.

1. The original judgment against J. A. Grooms should not have been modified. The court took into consideration its own impression of the facts existing when the original judgment was rendered. The necessary implication from the language of this court in the case of Lowe v. Hart, 93 Ark. 548, 559, is that the trial court cannot rely upon its own recollection, to the exclusion of oral testimony before it. The minutes made by the trial court on his docket, the judgment entered pursuant thereto, and the testimony of appellant's counsel, are all inconsistent with any other view than that the judgment as originally entered was correct. 84 Ark. 523, 532. See further on the power to amend judgments by nunc pro tunc orders, 106 Ark. 470; 93 Ark. 234, 237; 118 Ark. 497, 506; 72 Ark. 21; 55 Ark. 30, 37; 34 Ark. 291, 301; 159 Ark. 218; 51 Ark. 224, 231; 40 Ark 224, 232; 129 Ark. 301; 143 Ark. 543; 118 Ark. 593; 84 Ark 100. The effect of leaving the assailed judgment in force is to conclude appellees. 135 Ark. 450; 118 Ark. 402; 60 Ark. 146; 157 Ark. 27.

2. Appellants should have been granted a transfer to equity so as to make their judgments available as counter-claims or set-offs. (a) On their availability as counter-claims, see C. & M. Digest, § 1195; 24 R. C. L. 869; 160 Ark. 146; 135 Ark. 532. (b) As set-offs, see C. & M. Digest, § 1197; 24 R. C. L. 858, 859; 72 Ark. 44; 92 Ark. 594; 24 R. C. L. 871; 34 Ark. 707.

W. S. Luna, for appellees.

1. Because J. A. Grooms misconceived his right to interpose a part of the partnership debt as a cross-complaint against appellants, and attempted to do so, does not preclude him from thereafter seeking his proper remedy. 15 R. C. L. 985. It is true that a judgment is conclusive, not only upon the question actually determined, but upon all matters which might have been decided in that suit; but this refers to all matters properly belonging to the subject of the controversy and within the scope of the issue. 96 Ark. 545; 149 Ark. 179.

2. An amendment of a judgment may be based on any evidence, whether parol or otherwise, which is satisfactory to the court in its weight and character. 23 Cyc. 881; 17 Ark. 100; 85 Ark. 334.

OPINION

HUMPHREYS, J.

Appellees instituted suit against appellants in the Circuit Court of Greene County, First Division, to recover a real estate commission of $ 500 for producing a purchaser ready and willing to buy certain lands listed with appellees by appellants for sale.

Appellants interposed the defense of res judicata, claiming that the right of appellees to recover the commission was concluded in a suit tried on January 30, 1922, wherein Bertig Bros. were plaintiffs and J. A. Grooms was defendant.

At a later date J. A. Grooms filed a petition seeking to correct the judgment, upon which the plea of res judicata was based, so as to make it recite the dismissal without prejudice of his cross-complaint claiming one-half of said commission as a set-off, in lieu of a hearing and adjudication thereof.

Appellants filed an answer to the petition denying that, through inadvertence or oversight, a mistake was made in entering the judgment, but, on the contrary, alleging that a correct entry was made of the judgment actually rendered by the court.

Appellants also filed a cross-complaint and motion to transfer the cause to the chancery court so that, should appellees recover a judgment for the commission, appellants might receive credits thereon for the judgments theretofore obtained by them against each of the appellees. It was alleged in the cross-complaint that appellees had theretofore obtained a judgment against W. F. Grooms for $ 200.78 and against J. A. Grooms for $ 180.73, which could not be collected on account of the insolvency of said appellees.

Appellees admitted that Bertig Bros. had recovered separate judgments against them for the amounts alleged, and consented for the court to credit any amount recovered by them with said judgments, whereupon the court overruled the motion to transfer the cause to the chancery court, and entered a nunc pro tunc judgment correcting the record entry in the case of Bertig Bros v. J. A. Grooms, so as to show that the counterclaim of J. A. Grooms for one-half the commission was dismissed without prejudice. Exceptions were saved and preserved by appellants to the refusal of the court to transfer the cause to the chancery court and to the action of the court in correcting the judgment.

The cause was then submitted' to a jury, which resulted in a verdict and consequent judgment against appellants for $ 500, from which is this appeal.

Appellants enter a waiver to all objections saved and preserved by them, except those which relate to the trial court's refusal to transfer the cause to the chancery court, to allow appellants credit for their several judgments against appellees, and to treat the judgment in the J. A. Grooms case as res judicata. We think the first two exceptions must necessarily pass out of the case by the offer of appellees in the trial court, and at all times since, to credit the judgments in favor of appellants against them upon the judgment they might and did obtain against appellants. There was no necessity of transferring the cause to obtain a credit which appellees offered to make, and no necessity of appealing the case to this court to obtain a credit which appellees have at all times consented and agreed to make.

This leaves only one question for determination, and that is whether the trial court erred in entering a nunc pro tunc order correcting the judgment in the case of Bertig Bros. v. J. A. Grooms, so as to make it recite the dismissal of his counterclaim without prejudice, in lieu of reciting a hearing thereon. As amended, it is conceded that it did not constitute a proper basis for a plea of res judicata.

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