Coleman v. Zapp

• Citation: 151 S.W. 1040
• Parties: COLEMAN v. ZAPP et al.
• Decision Date: 18 December 1912
• Court: Texas Supreme Court

151 S.W. 1040

COLEMAN v. ZAPP et al.

Supreme Court of Texas.

December 18, 1912.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Petition for scire facias by Helen Zapp and another against Kate Coleman. From a judgment of the Court of Civil Appeals (135 S. W. 730), affirming a judgment awarding the relief sought, the defendant named, a judgment creditor, brings error. Affirmed.

W. L. Eason and Tom G. Dilworth, both of Waco, for plaintiff in error. E. W. Hander and Williams & Williams, both of Waco, for defendants in error.

PHILLIPS, J.

In the trial court this was a proceeding by scire facias, instituted by the defendants in error in the year 1909, to have entered nunc pro tunc and to revive a judgment rendered in 1903 in their favor against the plaintiff in error, in connection with which proceedings an attachment was sued out and levied. The judgment involved was originally obtained in 1898, but no execution was issued within one year from its rendition. In 1902 levy of an execution sued out on the judgment was made upon property belonging to the plaintiff in error, who thereupon filed an injunction suit to restrain its sale upon the ground that the judgment was dormant and the property levied upon exempt. In that suit defendants in error, defendants therein, pleaded their judgment and prayed that it be revived. Another party intervened claiming a lien upon the property seized. Upon a hearing of the case the court rendered the following judgment, according to the docket entry in the judge's handwriting (the Kate McChesney mentioned being the plaintiff in error, such being her name at that time): "4/8/03. Judgment for plaintiff perpetuating the injunction heretofore issued, and for defendants for balance due on the judgment sued on by them, viz., $1,823, against Kate McChesney, alias Winnie Clark, and her husband so far as he may be liable and for intervener against both plaintiffs for amount of its debt, etc., to which defendants except and give notice of appeal." In the entry of the judgment upon the minutes, however, that part of it which awarded a recovery in favor of these defendants in error against the plaintiff in error of $1,823 was omitted. This proceeding, instituted by defendants in error in 1909 as stated, by petition filed in the same cause, proposed no change in the judgment as entered in the minutes, other than to incorporate in it, in proper form, such omitted portion and as actually decreed by the court.

It is contended by plaintiff in error that the proceeding was an "action" to correct a judgment and therefore barred by the limitation provided in article 3358, R. S. 1895, which is as follows: "Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued, and not afterwards."

The solution of this question lies primarily in the substantial distinction which exists between the rendition and the entry of a judgment, and between the exercise of powers inherent in a court and those which depend for their operation upon the petition of parties.

The judgment of a court is what the court pronounces. Its rendition is the judicial act by which the court settles and declares the decision of the law upon the matters at issue. Its entry is the ministerial act by which an enduring evidence of the judicial act is afforded.

The failure of the minute entry to correctly or fully recite what the court judicially determined does not annul the act of the court, which remains the judgment of the court notwithstanding its imperfect record. Freeman on Judgments, § 38.

Hence it is that from the earliest times the power of correcting or amending their records, by nunc pro tunc entry, so as to faithfully recite their action, has been possessed and exercised by the courts as an inherent right, independent of any statute, and, in the absence of express provision, unaffected by limitation. Freeman on Judgments, § 56; Ency. Pl. & Prac. vol. 18, p. 459. Our statutes providing for the correction of mistakes in the record of judgments and decrees (articles 1356 and 1357, Sayles' Civil Stat.) govern the procedure of its exercise; but they are only cumulative of this inherent power of the courts to have their records at all times speak the truth. If a court is made aware that through mistake or omission its records do not recite its judgment as actually rendered, we do not doubt that it is not only the right but the duty of the court, of its own motion and after due notice to the parties, to order the proper entry. The nature of a judicial record, the accuracy of which is the peculiar concern of the court and which for that reason and to that extent remains within the court's control, forbids that its correctness as an expression or evidence of judicial action should depend upon the inauguration of a proceeding by the parties; and it is therefore plain that such a proceeding only invokes an authority which the court may exercise of its own accord. In Ximenes v. Ximenes, 43 Tex. 458, Judge Moore quoted the following language from the opinion of Judge Wheeler in Burnett v. State, 14 Tex. 456: "`Every court has the right to judge of its own records and minutes, and, if it appear satisfactorily to them that an order was actually made at a former term and omitted to be entered by the clerk, they may at any time direct such order to be entered on the records as of the term when it was made.'" And then announced: "And there can be no doubt, we think, that this court may, at a subsequent term after a final judgment, if there is the proper predicate for it, correct clerical errors or mistakes, cure defects of form, or add such clause as may be necessary to carry out the judgment of the court, make the entry in the minutes correspond with and correctly express the judgment actually rendered, as shown by the entire record." In Whittaker v. Gee, 63 Tex. 435, it was held by Chief Justice Willie as follows: "Frequent decisions of this court have settled the right to have a judgment amended after the expiration of the term at which it was obtained, when, through mistake or clerical error, the record does not speak fully or truly the judgment actually rendered in a cause."

A proceeding of such character, whose only purpose is to have the judgment entry speak truly the judgment as rendered, neither asserts nor seeks the enforcement of any new right. It presents no issue between the parties except in respect to the accuracy of the record, and otherwise involves the adjudication of nothing between them. It is powerless to reopen the controversy as closed and sealed by the judgment, and makes no such attempt. The inquiry...