Brougham v. Indep. Potash & Chem. Co., Case Number: 32136
| Decision Date | 18 May 1948 |
| Docket Number | Case Number: 32136 |
| Parties | BROUGHAM v. INDEPENDENT POTASH & CHEM. CO. |
| Court | Oklahoma Supreme Court |
¶0 1. COURTS - Nunc pro tunc orders - Jurisdiction.
Jurisdiction is inherent in every court of record to cause its records to speak the truth and by nunc pro tunc order, on proper application and notice, to cause to be entered orders and judgments made by the court which, by inadvertence or mistake, the clerk or the court has omitted to record.
2. SAME - Jurisdiction to order entered nunc pro tunc orders and judgments, not lost by lapse of time.
Jurisdiction to order entered nunc pro tunc orders and judgments by the court, but omitted from the record by the clerk, or the court, is not lost by lapse of time, where no intervening rights are affected.
3. SAME - Making of nunc pro tunc order depends on circumstances of each case.
Whether a nunc pro tunc order should be made, depends on the circumstances of the particular case, and is to be granted or refused as justice requires.
4. SAME - Power of district courts to correct and amend the record or any order by nunc pro tunc order.
District courts in this jurisdiction have the power, while a case is pending and before final judgment, to correct and amend the record or any order or proceeding had in such case to conform to the facts by a nunc pro tunc order, and is not confined to any one class of evidence, but may proceed upon satisfactory evidence.
5. APPEAL AND ERROR - Review - Conclusiveness of report of referee.
Under our statute, in a law action, where a referee is appointed and required to report the facts, the report has the same force and effect as a special verdict of a jury, and should not be disturbed if there is any evidence reasonably tending to support it.
Appeal from District Court, Oklahoma County; Clarence Mills, Judge.
Action by A. Leonard Brougham against the Independent Potash & Chemical Company. From the judgment, plaintiff appeals. Affirmed.
Twyford, Smith & Crowe, of Oklahoma City, for plaintiff in error.
Earl Pruet, of Oklahoma City, for defendants in error.
¶1 This is an action wherein plaintiff, A. Leonard Brougham, seeks to recover from the defendants, Independent Potash & Chemical Company and H.I. Grimes, its president, the sum of $12,250, as alleged balance due for legal services and expenses from October, 1935, to August, 1939. The parties will be referred to as they appeared in the trial court, the facts appearing in the discussion of the alleged errors.
¶2 The first two propositions presented by plaintiff, as grounds for reversal of the judgment rendered against him, attack the validity of the referee's report which contained the findings of fact and conclusions of law upon which the trial court rendered its judgment in favor of defendants. By order of reference made March 18, 1942, a referee was, over objection of plaintiff, appointed to hear the testimony and report to the court on or before April 18, 1942. This time was extended, by various orders, to and including August 31, 1942. The report was filed the following day, September 1st, pursuant to proper notice. On September 2nd plaintiff filed exceptions to the findings of fact and conclusions of law, based solely upon the insufficiency of the evidence, and also exceptions to the refusal of the referee to make the findings of fact and conclusions of law requested by plaintiff. Some three months later, on December 22, 1942, plaintiff filed motion to set aside the report of the referee upon the exceptions theretofore filed. In none of these exceptions or motion was any objection made to the report because it was filed out of time and after the expiration of the time allowed in the order of reference and extensions thereto.
¶3 Nothing further was done in the case until nearly a year later when, on September 1, 1943, plaintiff filed a motion to set aside the report because it was filed after the authority of the referee had expired. On September 2, 1943, defendants filed an application for an order nunc pro tunc extending the time for filing said report to and including September 1, 1942, as a repronouncement of an order to that effect, made prior to that date, but, through inadvertence and error, not reduced to writing and no minute thereof made. A hearing was had on the application, and on September 8, 1943, a nunc pro tunc order was made as of August 26, 1942, granting an extension of 30 days from August 31, 1942, within which the referee might file his report. At the same time the last motion of plaintiff, above mentioned, was overruled.
¶4 The testimony, taken at the hearing upon the motion for the nunc pro tunc order, established the following facts: That after preparing the report the receiver talked to the district judge on two occasions and went over the entire matter with him. That, at one of these times, he told the judge that he could not get the report filed and give the required notice before August 31st. That the judge then told him he could have an extension of time and that the clerk would prepare and enter the order. That such order was never written or entered, so far as was shown by the records. The report was approved and final judgment rendered August 1, 1944.
¶5 Plaintiff cites the cases of Woodmansee v. Woodmansee, 137 Okla. 112, 278 P. 278, and Jones v. Gallagher, 64 Okla. 41, 166 P. 204, to the effect that the correction of an order or judgment, made by the court upon parol proof, should be done only when the evidence is clear and convincing and that an order nunc pro tunc cannot bring into being something that did not occur. Also cited are the cases of Delong v. Stahl, 13 Kan. Rep. (2d Ed.) 414-419, Star pages 558-564, and Bradford v. Cline, 12 Okla. 339, 72 P. 269. All of these cases correctly state the law but none is determinative of the question here presented. The inherent power of a court, at any time after proper hearing, and so long as no intervening rights are affected, to cause its records to speak the truth and to enter an order nunc pro tunc accordingly has always been recognized in this jurisdiction. A rather recent affirmation of this rule is found in the case of Lofton v. McLucas et al., 189 Okla. 115, 113 P.2d 966, wherein reference is made to the earlier case of Courtney v. Barnett, 65 Okla. 189, 166 P. 207. In this latter case, this court further held that the lapse of time, in the absence of intervening rights being affected, has no effect thereon. Therein, it was also said:
¶6 Although from a jurisdiction where written evidence is necessary as a foundation for such an order, the case of Happy Coal Co. v. Brashear, 263 Ky. 257, 92 S.W.2d 23, discusses the office of an order nunc pro tunc at length, giving the historical background of the authority to make it. We think that court made a wise distinction between the nunc pro tunc entry of an administrative order and of a judgment, in that the court is not as strict in dealing with the former as in dealing with the latter. As was said in the case of Noyes v. Pierce, 97 Vt. 188, 122 A. 896:
"Whether a nunc pro tunc order should be made depends on the circumstances of the particular case, and is to be granted or refused as justice may require."
¶7 The earliest case in this jurisdiction applying the rules applicable to such...
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