Citizens Bank of Mammoth Spring v. Commercial National Bank of Chicago, Illinois

• Decision Date: 17 May 1915
• Docket Number: 392
• Citation: 177 S.W. 21,118 Ark. 497
• Parties: CITIZENS BANK OF MAMMOTH SPRING v. COMMERCIAL NATIONAL BANK OF CHICAGO, ILLINOIS
• Court: Arkansas Supreme Court

177 S.W. 21

118 Ark. 497

CITIZENS BANK OF MAMMOTH SPRING v. COMMERCIAL NATIONAL BANK OF CHICAGO, ILLINOIS

No. 392

Supreme Court of Arkansas

May 17, 1915

Appeal from Fulton Circuit court; J. W. Meeks, Judge; affirmed.

STATEMENT BY THE COURT.

This is the second appearance of this cause here, a statement of which appears in the former opinion wherein the complaint was held sufficient. Citizens Bank v. Commercial National Bank, 107 Ark. 142.

The Wood Grocery Company first brought suit in the justice court by attachment to subject certain funds in the hands of the Citizens Bank to the payment of its debt against L. Starks Company. The garnishee answered, admitting that it held the funds which it offered to pay into court.

The Commercial National Bank intervened, claiming to be the owner of the funds in the hands of the garnishee. Its intervention was denied by the justice and it appealed to the circuit court, the Citizens Bank becoming surety on its appeal bond. Upon the trial in the circuit court between the intervener and the Wood Grocery Company, the court rendered a judgment from which the Wood Grocery Company prayed and was granted an appeal.

The complaint herein alleges that the judgment was wrongfully and fraudulently entered against the Citizens Bank, which had already paid the funds in its hands to the Wood Grocery Company after the judgment was rendered against the intervener in the justice's court, when in fact judgment was rendered by the circuit court against the Wood Grocery Company and not the Citizens Bank.

A demurrer was sustained to this complaint on the first trial in the circuit court, from which an appeal was taken, and this court held, as already said, the complaint sufficient and reversed and remanded the case for further proceedings.

The Citizens Bank amended its complaint and alleged that it had in fact paid the garnished fund over to the Wood Grocery Company, after the intervention of appellee herein was dismissed in the justice court, upon the order of the justice and before an appeal was taken from the order of dismissal and also alleged more specifically the entry of judgment against it by misprision of the clerk when no judgment had in fact been rendered by the circuit court against it "That the court at that time rendered judgment against the Wood Grocery Company, a party to that action, and that by mistake or clerical misprision, said judgment was unlawfully and wrongfully entered of record against this plaintiff."

The Commercial National Bank admitted that it had procured the judgment against the garnishee and that same was entered upon the records of the circuit court, but denied that it was unauthorized or procured by fraud, clerical misprision or mistake or entered without authority. It denied that the garnishee was without notice of the proceedings in the circuit court and alleged that it appealed from the judgment dismissing its interplea in the justice's court in open court on the day of the trial and that the garnishee bank became its surety on the appeal bond and had full knowledge of the pendency of the proceedings in the circuit court. Denied also that the garnishee paid over the funds in its hands before the appeal was taken from the justice's court.

Both the attorneys representing the Wood Grocery Company in the first trial in the circuit court testified, the deposition of Sam Davidson, who had since died, being read and also A. P Campbell, who was the manager of the Wood Grocery Company. The attorneys of appellee bank and the circuit court judge also testified.

It appears from the testimony that the circuit court rendered judgment against the Wood Grocery Company, both the attorneys and the manager thereof stating positively that such was the fact and the judge's minutes showing, "Judgment for amount against Wood Grocery Company."

The testimony relating to the alleged payment of the money by the garnishee upon the order of the justice, to the Wood Grocery Company after the dismissal of appellee's interplea shows that the appeal was prayed and granted on the day of the trial, in open court, and the affidavit and bond filed within an hour or two thereafter. The attorney for the Wood Grocery Company and the cashier of the garnishee bank testified that immediately after the judgment of dismissal was rendered that the bank paid the garnished funds to the Wood Grocery Company upon the order of the justice and took a receipt therefor some little time before the affidavit and bond for appeal were filed.

The testimony also shows that Campbell, the manager of the Wood Grocery Company, agreed to repay the fund to the Citizens Bank or hold it harmless if it should be compelled to pay the fund to the Commercial National Bank, upon the appeal to the circuit court.

The entries in the justice's docket show that the case was tried and the appeal granted on May 21, and the receipt for the garnished fund shows it to have been paid on the 25th. The cashier of the garnishee bank and the manager and also the attorney of the grocery company and the attorneys as well testified that it was paid on the same day of the trial and immediately after the dismissal of the interplea, the justice also saying that his docket entries were not always made up at the time of filing papers and the occurrence of the proceedings.

The court set aside the judgment against the garnishee, the Citizens Bank, and entered judgment nunc pro tunc against the Wood Grocery Company. It also found that while the intervener was endeavoring to perfect its appeal from the judgment of the justice of the peace, that the justice ordered the Citizens Bank to pay the money garnished in its hands to the Wood Grocery Company, "with the understanding that in case of an appeal, and it was declared that the Wood Grocery Company was not entitled to it and the Citizens Bank was required to pay the money to the Commercial National Bank that the Wood Grocery Company would reimburse it for the said amount, and therefore judgment should be rendered against it, the Citizens Bank also," and rendered judgment accordingly; and from this judgment this appeal is prosecuted.

Judgment affirmed.

David L. King, for appellant.

1. This case has been here Before (107 Ark. 142), and was reversed and remanded. On remand there was but one issue, whether or not the judgment entered of record should be vacated and set aside. This was all plaintiff asked. The Citizens Bank was relieved of liability. 107 Ark. 145.

2. The court had no authority to render the nunc pro tunc judgment. There never was a judment against appellant add the entering of the same upon the record was either a fraud of misprision. But if the court really rendered judgment, and it was never entered of record, the court lost jurisdiction after the term lapsed, and could not, three years later, without notice, enter a nunc pro tunc judgment. 40 Ark. 224; 41 Id. 75; 51 Id. 34; 53 Id. 21. The purpose of a nunc pro tunc order is to make the record speak the truth and reflect the facts as they actually took place. 106 Ark. 470; 72 Id. 21; 92 Id. 299; 99 Id. 234.

3. Judgments without notice are void. Kirby's Dig., § 4424; 58 Ark. 181.

C. E. Elmore and McCaleb & Reeder, for appellees.

1. The appeal should be dismissed for failure to comply with the rules.

2. The nunc pro tunc judgment against the Wood Grocery Company was properly entered. The record of a judgment is only evidence of its existence, its enforcement does not depend upon its being entered of record, 59 Ark. 588; 57 Id. 185; 4 Id. 591; 40 Id. 224; 12 Id. 670; 35 Id. 278; 78 Id. 364; 103 Id. 484. If a judgment was in fact rendered, it can be entered of record afterward. A court can not set aside or modify a judgment after the term has lapsed. 78 Ark. 364.

3. The Citizens Bank has nothing to appeal on. It filed no motion for new trial and failed to allege error in the trial in any way. The only question raised is the jurisdiction of the court. No prejudice is shown. All parties were before the court and subject to its jurisdiction.

4. The judgment is right and correct. It is sustained by the pleadings and should stand. There is ample evidence to support it. The answer will be treated as amended to conform to the proof. 100 Ark. 537; 98 Id. 312; 97 Id. 576; 91 Id. 292; 88 Id. 363; 74 Id. 37.

5. The nunc pro tunc judgment was properly entered at a subsequent term of court. 35 Ark. 278; 33 Id. 218. Where there is an error in a judment, clearly shown of record, the error may be corrected at any time by nunc pro tune order. Ib.

OPINION

KIRBY, J., (after stating the facts).

Appellant contends that the court was without jurisdiction to render the judgments. It insists that the Wood Grocery Company had no notice of the proceeding and that the judgment nunc pro tunc against it is therefore void.

The attorneys who represented the Wood Grocery Company in the former litigation and A. P. Campbell, the manager of said company, now one of the owners of its successor, were both in court, both testified unequivocally that a judgment was in fact rendered against the Wood Grocery Company by the circuit court; that it prayed and was granted an appeal...