Book v. Everitt Lumber Co., Inc.

• Citation: 542 P.2d 669,218 Kan. 121
• Decision Date: 08 November 1975
• Docket Number: No. 47752,47752
• Parties: Eldon BOOK and Roberta Book, Appellants, v. EVERITT LUMBER COMPANY, INC., a corporation, and Paul Gay, d/b/a Paul Gay Construction Co., Appellees.
• Court: Kansas Supreme Court

Page 669

542 P.2d 669

218 Kan. 121

Eldon BOOK and Roberta Book, Appellants, v. EVERITT LUMBER COMPANY, INC., a corporation, and Paul Gay, d/b/a Paul Gay Construction Co., Appellees.

No. 47752.

Supreme Court of Kansas.

Nov. 8, 1975.

Syllabus by the Court

1. A journal entry of judgment is not the judgment itself but merely purports to be a record of the judgment rendered.

2. The purpose of a nunc pro tunc order is not to change or alter a judgment actually rendered; its function is merely to correct the record of a judgment by entering now for then an order previously made and not to make an order now for then.

3. When a motion for an order nunc pro tunc is pending, the trial judge's personal recollection of the facts and circumstances under which the judgment was rendered and of the court's purpose and intention in rendering it has the probative force of evidence bearing on the propriety of granting or denying the motion presented for determination.

John F. Christner of Romine & Christner, Abilene, argued the cause and was on the brief for appellants.

Robert L. Marietta of Marietta & Kellogg, Salina, argued the cause and was on the brief for appellee, Everitt Lumber Co., Inc.

KAUL, Justice:

The litigation involved in this appeal was initiated by appellants-landowners, Eldon and Roberta Book, who filed an action under K.S.A. 60-1108, to secure early adjudication of a mechanic's lien filed by appellees against the Books' newly constructed house. This appeal is from an order nunc pro tunc entered by the trial court in the original action two years after the original action was terminated by an order sustaining the Books' motion for involuntary dismissal of an amended cross-petition filed by the defendant-appellee, Everitt Lumber Company, Inc. Appellee, Paul Gay Construction Company, is no longer involved in the litigation.

The Books entered into a contract with Everitt Lumber Company, Inc. (hereafter referred to as Everitt), whereby the latter agreed to supply various specified building materials to Books for the construction of a new house. The contract called for building materials in the total amount of $16,000.00 to be furnished by Everitt.

By the time their house was completed, Books had made payments to Everitt totaling $17,365.37 for materials furnished. Everitt, however, maintained that it still had money coming for 'extras' consisting of materials furnished over and above those contemplated in the original written contract. In April 1971 Everitt filed a mechanic's lien statement asserting a lien against the property in the amount of $8,003.01 for materials furnished.

In October 1971 Books filed in district court of Dickinson County an action entitled 'Petition to Adjudicate Liens' in which they contested the validity of Everitt's lien. Everitt filed an answer and cross-petition in which it alleged that it furnished materials for the Books' house in the sum of $25,368.38, of which $17,365.37 had been paid by Books, leaving a balance due of $8,003.01 plus interest. Everitt prayed that the lien and claim for principal and interest be ascertained and adjudged and the property be sold to satisfy the amount of the debt established by the court. Books filed a reply to Everitt's cross-petition in which they admitted payment of $17,365.37 to Everitt, but denied there was any balance due and owing. In their reply Books alleged that the lien statement was deficient in numerous respects including lack of proper itemization.

After the pleadings were completed a pretrial conference was held on April 5, 1972. As a result of the conference a pretrial order was entered which, among other things, directed Everitt to furnish Books a detailed itemization to show all of the materials allegedly furnished and to specify all of the materials that were included under the $16,000.00 original contract, and to show any 'extras' above that amount.

The pretrial order further stated that a later pretrial hearing would be conducted after the items referred to had been furnished to Books.

On June 5, 1972, Books filed a motion for involuntary dismissal of Everitt's counterclaim alleging that Everitt had failed to provide the itemization called ror in the pretrial order and that by its nonaction had violated an order of the court as proscribed by K.S.A.1974 Supp. 60-241(b) and (c), and that the counterclaim of Everitt should be involuntarily dismissed.

The trial court heard the motion on June 13, 1972, and on July 3, 1972, the court's order was journalized. The substance of the journal entry reads:

'WHEREUPON, the Court hears the Motion of Plaintiff for Involuntary Dismissal of the Amended Cross-Petition of Defendant, Everitt Lumber Company, Inc., and the Court after hearing arguments of counsel and being fully advised in the premises finds that said motion for Involuntary Dismissal as provided by K.S.A. 60-241(b)(c) should be sustained and said Amended Cross-Petition dismissed.

'IT IS THEREFORE, BY THE COURT, CONSIDERED, ORDERED, ADJUDGED AND DECREED That the Motion of both Defendants for continuance be and it is hereby denied; that the motion of Plaintiffs for involuntary dismissal of the Amended Cross-Petition of the Defendant, Everitt Lumber Company, Inc., be and the same is hereby granted and sustained one-half of the total costs of the above entitled action are hereby assessed against the Defendant Everitt Lumber Company, Inc.'

No appeal was teken from the order of dismissal.

We are informed in Everitt's brief that following the dismissal of the Dickinson County lawsuit it replaced some specially ordered materials which Books contended were not satisfactory and that thereafter Everitt filed an action against Books in the district court of Saline County. In this latter action, filed on December 26, 1973, Everitt alleged $8,003.01 was due and owing on the bill for materials. Books filed an answer in the Saline County action on January 23, 1974 setting up the Dickinson County judgment of June 13, 1972, as a bar to the action. On April 17, 1974, the Saline County district court entered an order directing that the dispute over the construction and intention of the journal entry of June 13, 1972, be resolved by a nunc pro tunc proceeding by the judge who made the decision in the district court of Dickinson County. Neither party objected to, nor challenged, this order of the Saline County district court.

Thereafter, on May 31, 1974, Everitt filed a motion for an order nunc pro tunc in the district court of Dickinson County. The motion reads in pertinent part as follows:

'2. In support of said motion, the Defendant, Everitt Lumber Company, Inc., states that the adjudication the Court made in sustaining the motion of the Plaintiffs determined only the question of the Defendant's right to establish a lien on property owned by the Plaintiffs; that at no time did this Court make a judicial determination of the rights of the Defendant, Everitt Lumber Company, Inc., to pursue a claim for money judgment against the Plaintiffs.

'3. In further support of the motion, the Defendant, Everitt Lumber Company, Inc., states that the provisions of K.S.A. 60-241(b) provides that if the Court is to render judgment on the merits, it must make findings as provided by Section 60-252(a); that no findings of fact were made as shown in the Journal Entry of June 13, 1972.

'4. The Court, at no time, intended the Journal Entry of June 13, 1972, to be a determination of all of the rights of the parties to that action, and that a question has arisen as to the construction of the wording of the Journal Entry of June 13, 1972. As a result of a clearical error, the Journal Entry of June 13, 1972, contains an omission to the extent that it does not state that the sustaining of the motion for involuntary dismissal determined only the rights of the Defendant to establish a lien on the property owned by the plaintiffs.

'WHEREFORE, the Defendant, Everitt Lumber Company, Inc., prays for an Order nunc pro tunc modifying and correcting the Order of this Court dated June 13, 1972, in order that the same might accurately reflect the action taken by the Court on that date.'

After a hearing on the nunc pro tunc motion the district court of Dickinson County granted the relief sought and specifically found that the dismissal of the cross-petition of Everitt was due to a failure by the defendant to properly establish the right to a lien on property owned by plaintiffs. The court's findings and comments in rendering its decision are reproduced in the record and supplemental record on appeal. The journal entry reads in pertinent part as follows:

'2. That the dismissal of the cross claim of the Defendant as reflected by the Journal Entry of June 13, 1972, was due to a failure by the Defendant to properly establish the right to a lien on property owned by the Plaintiff.

'3. That on June 13, 1972, this Court made no findings nor any adjudication of the rights of any of the parties to this action other than the right of the Defendant, Everitt Lumber Company, Inc., to establish a lien on the property, and that at no time did this Court make a determination as to whether any party was indebted to the other.

'4. That this action was initiated by the Plaintiff to adjudicate the validity of a lien which was causing a cloud on the title of real estate owned by the Plaintiff, and the Court determined that such lien was invalid and the question of the validity of the lien and the right of the Defendant to establish the same has been determined on the merits.

'5. That the Journal Entry of June 13, 1972, contains a clerical error in that it does not state that the dismissal of the cross claim of the Defendant Everitt Lumber Company, Inc., determined only the issue of the Defendant to establish a mechanic's lien on property owned by the Plaintiff.

'IT IS, THEREFORE, BY THE COURT, CONSIDERED, ORDERED, ADJUDGED AND DECREED, that the Order of this Court dated June 13, 1972, be...