Cartwright v. MFA Mut. Ins. Co. of Columbia, Mo.

• Decision Date: 13 June 1972
• Docket Number: No. 43302,43302
• Citation: 499 P.2d 1380
• Parties: Rachel CARTWRIGHT, a Minor, By Ell Cartwright, her father and next friend, Appellant, v. MFA MUTUAL INSURANCE COMPANY OF COLUMBIA, MISSOURI, Appellee.
• Court: Oklahoma Supreme Court

Page 1380

499 P.2d 1380

Rachel CARTWRIGHT, a Minor, By Ell Cartwright, her father and next friend, Appellant, v. MFA MUTUAL INSURANCE COMPANY OF COLUMBIA, MISSOURI, Appellee.

No. 43302.

Supreme Court of Oklahoma.

June 13, 1972.

Rehearing Denied July 25, 1972.

Glenn A. Young, Earl W. Wolfe, Sapulpa, for appellant.

Best, Sharp, Thomas & Glass, Joseph A. Sharp, Tulsa, for appellee.

IRWIN, Justice.

Appellant, in a garnishment proceeding, sought collection of a default judgment rendered against Appellee's (garnishee's) insured. Garnishee denied liability and filed its motion for summary judgment alleging that: Appellant, as plaintiff in the trial court, instituted an action against its insured and defendant Helt, as joint tort-feasors, for damages sustained in an automobile accident; plaintiff recovered judgment against defendant Helt only, and a release and satisfaction of the judgment was filed; upon satisfaction of the judgment rendered against defendant Helt, the cause of action against its insured was extinguished and the purported judgment against its insured was void as no cause of action existed on that date.

Appellee filed a motion for order nunc pro tunc alleging that: the language used in the trial court's judgment against defendant Helt, by inadvertence, does not reflect the true judgment intended; the true judgment intended was to approve only a covenant not to proceed further with the litigation against defendant Helt, while reserving appellant's rights to proceed with the litigation against garnishee's insured. Appellant prayed that an order nunc pro tunc be entered which would reflect the true judgment intended to be rendered against defendant Helt.

The trial court overruled appellant's motion for an order nunc pro tunc and sustained garnishee's motion for summary judgment. Appellant appealed.

Appellant argues that when the journal entry of judgment rendered against defendant Helt is considered with the transcript of the proceedings taken on the day the judgment was rendered, the same clearly indicates that the parties intended the proceedings to be in the nature of a settlement upon a covenant not to sue or to proceed further with the litigation against Helt only, and reserved to appellant the right to proceed against garnishee's insured. Appellant contends the trial court erred in overruling its application for an order nunc pro tunc and sustaining garnishee's motion for summary judgment.

The record conclusively shows that at the hearing wherein appellant, hereafter referred to as plaintiff, obtained her judgment against defendant Helt that the parties thereto, plaintiff and Helt, intended that any judgment against Helt would constitute only a partial satisfaction of plaintiff's claim against both joint tortfeasors, and would not prejudice her rights to further proceed against Helt's co-defendant, garnishee's insured.

At the close of the evidentiary hearing in which plaintiff obtained her judgment against Helt, the trial court stated: 'Let the record show judgment for plaintiff as per journal entry.' In its journal entry of judgment, the trial court found that the accident causing plaintiff's injuries was due to the negligence of both defendants; and that Helt denied sole responsibility, but for the purpose of compromising the case as to her only, she was willing to pay plaintiff $6,500.00. The trial court ordered that plaintiff 'have and recover of the defendant Helt the sum of $6,500.00, but the determination herein will in no way prejudice the rights of plaintiff to proceed against any other parties to the accident which right is specifically reserved to plaintiff.'

On the day the judgment against Helt was rendered and filed, plaintiff filed a partial release and satisfaction of the judgment. This instrument recited that the $6,500.00 was received and accepted in full payment and satisfaction of the partial judgment and that Helt was released and discharged from further liability and demand. This instrument also recited that the release was intended to only release and discharge defendant Helt from liability, and 'shall in no way release or discharge any other parties to the accident nor in any way prejudice her rights to proceed against any other parties to the accident.'

In the default judgment rendered against garnishee's insured, the trial court found that plaintiff had been damaged in excess of $6,500.00 awarded her against Helt; and that judgment should be rendered accordingly.

Plaintiff argues that Youngblood v. Stephens, 201 Okl. 301, 205 P.2d 279, supports her motion for the order nunc pro tunc. In that case Stephens sought possession of certain described property. The petition and journal entry described the property as being a strip of land along the west side of the lot but all the evidence was directed to the east side of the lot. After hearing, the trial court found the use of the word 'west' in the journal entry was erroneous and that the word 'east' should have been used in its place to correctly reflect the judgment of the court, and corrected the journal entry of judgment accordingly. In sustaining the trial court's nunc pro tunc order we cited with approval Hawks v. McCormack, 180 Okl. 569, 71 P.2d 724, wherein we said:

"But the true function of a nunc pro tunc order is to make the record speak the truth relative to the judgment or order. That is to make the record reflect the true judgment or order intended by the court at the time the original judgment or order was entered. If the clerk makes a mistake or incorrectly enters a judgment or order, the same may be corrected by an order nunc pro tunc. If the court itself by inadvertence uses language in the journal entry which does not reflect the true judgment or order intended, an order may be made nunc pro tunc correcting same. * * *'.'

In clarifying and explaining the above quoted language and in discussing the meaning of the word 'intended' when referring to what judgment a trial court intended to render, we said in Stevens Expert Cleaners & Dyers v. Stevens, Okl., 267 P.2d 998, that: 'a trial court cannot by order nunc pro tunc modify or amend a former judgment to make it the judgment he Intended to render but did not. But, the court can, by such order, correct the journal entry so that the words have the Meaning intended, in that they reflect the judgment actually rendered or pronounced. This reasoning is in line with that contained in the opinion in the case of Hawks v. McCormack, 180 Okl. 569, 71 P.2d 724, 725.'

The Stevens Expert Cleaners case very clearly points out that the language above quoted in Hawks v. McCormack, should not be construed to mean that a trial court can by order nunc pro tunc modify or amend a former judgment to make it a judgment the court Intended to render, but did not.

In Fowler v. Zimmerman, Okl., 383 P.2d 682, we said that when this Court considers whether an order nunc pro tunc should have been granted, we are not concerned with what judgment would have been proper but what judgment was actually rendered. In Fowler, Judge W rendered the original judgment and the application for an order nunc pro tunc was heard by Judge E. In the hearing, Judge W testified he intended to render the judgment which was later reflected in...