Blankenship v. Royalty Holding Co.
Decision Date | 11 February 1953 |
Docket Number | No. 4548.,4548. |
Parties | BLANKENSHIP et al. v. ROYALTY HOLDING CO. |
Court | U.S. Court of Appeals — Tenth Circuit |
Cecil A. Morgan, Fort Worth, Tex. (Spencer Shropshire, Fort Worth, Tex., on the brief), for appellants.
Loyd Benefield, Oklahoma City, Okl. (Savage, Gibson & Benefield, Oklahoma City, Okl., on the brief), for appellee.
Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.
The action out of which this appeal arises was originally filed by the Royalty Holding Company, Inc., appellee, against Daisy D. Blankenship, individually, and against her as executrix of the estate of G. T. Blankenship, deceased. The court in that action sustained her motion to dismiss as to her individually for failure to state a claim upon which a recovery could be had. The judgment of the court on the motion, as evidenced by a written journal entry, approved by the attorney for appellee, Royalty Holding Company, Inc., and for Daisy Blankenship and signed by the court, so far as material reads as follows:
Edgar S. Vaught, Judge. O.K.: Loyd Benefield, Attorneys for Plaintiff; Dudley, Duvall & Dudley, by J. B. Dudley, Attorneys for Defendants. Filed: March 29, 1950."
Two years to the day after the entry of this judgment, Royalty Holding Company, Inc., filed a motion for an order nunc pro tunc to correct the judgment as recorded, by inserting after the word "dismiss" as contained therein the words "without prejudice". This application for the nunc pro tunc order came on for hearing before the Honorable W. R. Wallace, District Judge. After a full hearing thereon in which oral testimony was adduced, and with the consent of both parties, Judge Wallace discussed the matter with Judge Vaught, who entered the original judgment, and thereafter entered an order sustaining the motion to correct the judgment as prayed for. This appeal challenges the correctness of that action.
Courts possess the inherent power to correct errors in the records evidencing the judgment pronounced by the court so as to make them speak the truth by actually reflecting that which was in fact done. They do not, however, possess the power to correct an error by the court in rendering a judgment it did not intend to render and by such an order change a judgment actually but erroneously pronounced by the court to the one the court intended to record. With these principles all courts are in accord.
The decisions are, however, not harmonious as to the conditions and factors which may be considered on such a motion. The rule at common law was that a correction of clerical errors in the record of a judgment by a nunc pro tunc order could be based solely upon the record prior or at least of equal date with that part of the record sought to be corrected. It could not be based upon a consideration of parol evidence. This is still the rule in some of the states.1 Other states have relaxed the rigid rule of the common law with varying degrees. Some courts hold that a nunc pro tunc order at a subsequent term can only be made upon evidence furnished by the papers and files in the case or something of record in the clerk's minute books or on the judge's docket.2 All the courts permitting oral evidence to be considered hold that such evidence must be clear and convincing.3 The rule is well stated in Morgan v. Scott-Mayer Commission Co., 185 Ark. 637, 48 S.W.2d 838, 840, as follows: "* * * and, to justify such an order, that testimony must be clear and so decisive in its nature as to overcome the recitals of the written judgment sought to be corrected". While Puccinelli v. United States, 9 Cir., 5 F.2d 6, 9, was a criminal case in which a judgment was thus sought to be corrected, what was said there applies with equal force to a judgment in civil cases. The court therein said: .
Some courts while permitting a judge to take into consideration his independent recollection of what occurred at the time of the entry of the judgment limit such right to cases in which the application is made within so short a time after the judgment is entered that the terms of the judgment pronounced will be fresh in the minds of both counsel and the court.4
Tested by these rules, we are of the view that the judgment appealed from cannot be sustained. Here the written record is clear and convincing as to the judgment which was entered by the court at the time. While a journal entry is not the judgment of the court, the practice in the district court seems to have been to make it the means of recording what was done. The record does not make it clear who prepared the journal entry of judgment. There is...
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