Evans v. King-Peoples Auto Co.

• Citation: 135 Miss. 194,99 So. 758
• Decision Date: 21 April 1924
• Docket Number: 24102
• Court: United States State Supreme Court of Mississippi
• Parties: EVANS et al. v. KING-PEOPLES AUTO CO. [*]

99 So. 758

135 Miss. 194

EVANS et al. v. KING-PEOPLES AUTO CO. ^[*]

No. 24102

Supreme Court of Mississippi

April 21, 1924

Division B

(Division B.) January 1, 1920

JUDGMENT. Order setting aside judgment after term held properly vacated.

Where a suit was filed on purchase-money notes given for the purchase price of an automobile, and the defendant on seizure of said automobile in such suit gives bond conditioned to satisfy the judgment to be rendered, and where on the trial a judgment is entered against the sureties and principal for the amount of the debt, and condemns the automobile to be sold to pay the judgment and enter a substituted judgment, but afterwards, on motion, sets aside such vacation order, the court on appeal holds such action in reference to the last order is valid and proper, and that the original judgment should stand in force.

HON GREEK L. RICE, Judge.

APPEAL from circuit court of Tallahatchie county, HON. GREEK L RICE, Judge.

Action by C. F. Evans and another against the King-Peoples Auto Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

See also, 132 Miss. 95, 94 So. 841; 95 So. 521.

Judgment affirmed.

Hays, Stingily & Whitten, for appellants.

The court, in entering the judgment appealed from, acted on the theory that the judgment affected by it was a void judgment, having been entered after the adjournment of the term, and that a void judgment could be set aside at any time.

Two questions arise: (1) Can a court set aside a void judgment, even after the adjournment of the term if the judgment entered was in fact the judgment of the court with no mistake involved? It will be remembered that the judgment appealed from was also entered after the adjournment of the term at which the judgment set aside was entered, and only for the reason that the court changed his mind about the law.

Even if the judgment which was attempted to be set aside by the judgment appealed from, had been hopelessly void, still the court was in error in entering the judgment by which it was attempted to be set at naught, for the reason that this last judgment itself was entered at a subsequent term, and the court had lost jurisdiction. The judgment entered was exactly the judgment the court then intended to enter; and after adjournment of the term there was left no power to correct, change or amend it. Of course, this might be otherwise if there had been a mistake about it, and if the judgment had been other than the judgment which the court had actually made. The January, 1923, judgment was the judgment the court intended to make, but, even if void the September, 1923, judgment is also void. McComb v. Doe, 8 S. & M. 505, 519.

In the judgment appealed from there was no effort to correct a mistake, miscalculation, or mis-recital of any sum of money, quantity or anything, or of any name, so as to authorize a correction of the judgment under section 736 of the Code, nor was the judgment made to correct a judgment erroneously entered and which was therefore never the judgment of the court. We submit therefore that the court erred in entering the judgment appealed from and that this case ought to be reversed for that reason, and this, even though the judgment entered by the court in January, 1923, was void.

(2) Next, is the January, 1923, judgment void? It is not. The court does have power to strike out a judgment erroneously entered by a mistake of the clerk at a former term and to substitute for it the wholly different judgment actually entered by the court, and this, at any time, even years after adjournment of the term. Wilson v. Town of Handsboro, 99 Miss. 252, 257; Forbes v. Narva, 63 Miss. 1; Cotton v. McGhee, 54 Miss. 622; Powers v. State, 83 Miss. 697; Freeman on Judgments, section 71; Frenk v. Frenk, 80 Am. Dec. 190; Remick v. Butterfield, 64 Am. Dec. 316.

It follows from the holdings of these cases that the judgment entered in vacation in January, 1923, was a valid judgment, and the judgment rendered at the September term, 1923, from which the appeal is prosecuted, is a void judgment. Therefore this case ought to be reversed on this appeal, and the petition of the appellee ought to be dismissed.

Chapman, Moody & Johnson, for appellee.

On the facts, disclosed by the record, the first judgment, rendered September 8, 1920, was the only judgment which, under the law, could have been entered. That judgment is a perfectly valid judgment in every respect. This question has been settled, by this court, as to that identical judgment. Flannigan v. King-Peoples Auto Company, 94 So. 841.

The inherent power of a court of record to vacate a judgment, rendered at a former term, so as to strike out a judgment erroneously entered by mistake, and substitute for it a wholly different judgment, actually rendered by the court, is not, we submit, presented by the record. There is nothing in the record (and the lower court when it passed on the motion, only "examined the files, memoranda and papers in said cause,") to even indicate that the judgment entered was different from that actually rendered. To the contrary, the judgment entered, and which was attempted to be set aside was the only judgment, which, under the law, as this court has held, should have been entered.

What, in fact, the lower court, on the motion, was asked to do, and what, in fact, it did, was to review the case and render a different judgment from that entered. This, it cannot do. 23 Cyc., page 868.

The judgment, as actually entered on the minutes, is that of the court, and not simply that of the judge. During the term the judge, of course, has control of the judgments entered, and, his opinion as to their validity or invalidity, regularity or irregularity, controls. After the term the judgment is that of the court free from the control of the judge. Therefore, the question is, has the court, at a subsequent term, the power to vacate a valid judgment, rendered at a former term, even if the judge intended, or in fact ordered, an erroneous judgment to be entered? To so hold would be to make the judgment, formerly entered, that of the judge and not that of the court. What is stated applies to a valid, not an invalid or irregular judgment, formerly entered by the court. The rule is that the court, at a subsequent term, has the inherent power to vacate a final judgment entered at a former term, if irregular or invalid, and different from that which the judge ordered entered, but not a valid judgment.

If the court was without the power to vacate the first judgment, then the order to that effect is void and may be, at a subsequent term set aside. 23 Cyc. 905; Meyer v. Whitehead, 63 Miss. 387. If, however, the said order be not void, but erroneous, it should be reversed on the cross-appeal, in which event the original judgment is restored. 23 Cyc. 976, par. 7.

R. H. Kirby, also for appellee.

The alleged corrected judgment or order is a new judgment altogether and not a correction of the original judgment, and therefore the court had no jurisdiction to grant it. Upon its face it claims to be a correction of some error, miscalculation and misrecital of a sum of money, as provided for in section 736, Hemingway's Code. But does it correct any such error? We say it does not, because there was no such error as contemplated by section 736. The court pronounced judgment, and the judgment was entered just as pronounced. See Ruling Case Law--Judgments, pp. 124-127-129-130, as well as the cases cited by opposing counsel, to-wit: Wilson v. Town of Handsboro, 99 Miss. 252; Forbes v. Navra, 63 Miss. 1; Cotton v. McGhee, 54 Miss. 622.

As to the power of the court to set aside and vacate the said corrected judgment and...