Fawcett v. Weaver

• Decision Date: 16 October 1935
• Citation: 163 So. 561,121 Fla. 245
• Parties: FAWCETT v. WEAVER et al.
• Court: Florida Supreme Court

163 So. 561

121 Fla. 245

FAWCETT v. WEAVER et al.

Florida Supreme Court

October 16, 1935

En Banc.

Error to Circuit Court, Broward County; George W. Tedder, Judge.

Ejectment suit by Clyde W. Fawcett against Guy Weaver and others. To review a judgment for defendants, plaintiff brings error.

Affirmed.

DAVIS and BROWN, JJ., dissenting in part.

COUNSEL John W. Whelan, of Hollywood, for plaintiff in error.

Rogers & Morris, George W. English, Jr., and E. B Griffis, all of Ft. Lauderdale, for defendants in error.

OPINION

BUFORD Justice.

In this case the writ of error brings for review a judgment in favor of the defendant in the court below in a suit in ejectment.

The one assignment of error relied upon is as follows:

'The court erred in rendering final judgment herein in favor of defendants herein on November 16, 1934, and recorded in the minutes of the Circuit Court in Book 17 at page 343 thereof.'

This assignment of error would be held too general under authority of the opinion and judgment in the case of Stearns &amp Culver Lumber Co. v. Adams, 55 Fla. 401, 45 So. 847, except for the fact that the assignment of error here presented is definitely limited by its application to the entry of the judgment at the time it was entered.

There is no bill of exceptions contained in the transcript of the record.

The record shows that a verdict was rendered for the defendant at the spring term of the circuit court in May, 1934.

Motion for new trial was duly entered and was denied on July 2d, during the same term of court, but no final judgment was then entered. At the succeeding term of the court, in November, 1934, judgment was entered on the verdict in favor of the defendant.

It is contended by the plaintiff in error that it constituted reversible error for the court to enter a judgment at the succeeding term of court to that during which the verdict was rendered and motion for new trial denied. It is elementary that an action at law once instituted is pending until final judgment is entered, and it cannot be maintained under our system of practice and procedure that if the court fails to enter a judgment which is due to be entered at one term of the court it is precluded thereafter to close the case by the entry of a proper judgment on the record.

In Florida Development Co. v. Polk County Nat. Bank, 76 Fla. 629, 80 So. 560, 561, we said:

'In other words, while all the conditions existed and were complied with which the statute provides and which entitled the plaintiff to a judgment, the failure to enter the judgment proper was a mere misprision of the clerk of the court. The declaration, the process, service, appearance, and default were all regular. The plaintiff produced and filed the instrument sued on which was a written instrument for the payment of money. Thus far the plaintiff was charged with the duty of attending to the regularity of the proceedings. See Wood v. Bank, 1 Fla. 378.

'The plaintiff was then entitled under the statute to his judgment. That it was not duly 'entered' in formal words was the fault of the clerk. Having complied with all the requirements of the statute and having submitted a cause regular in all its proceedings, the plaintiff was then entitled under the law to his judgment.'

And further in that case it is said:

'The question in the instant case is: Had the court below power to enter the judgment nunc pro tunc? We treated the motion as one to order a nunc pro tunc entry of the judgment. The language of the motion, however, in one part is to 'amend nunc pro tunc the final judgment entered,' while in the third and fourth grounds of the motion the language indicates the purpose of securing the entry of a judgment now for the time when the plaintiff was entitled to it. The third ground states that the proposed judgment is in accordance with the records and files in the cause, and the fourth ground states that it is such a judgment as the plaintiff was entitled to have entered on September 16, 1895. The bill of exceptions fully sustains these two grounds, and it does not appear that any injury will result to third persons by the entry.

'The power of the court to enter judgments nunc pro tunc is universally conceded. It is one which has been recognized and exercised from ancient times and as a part of the court's common-law jurisdiction. See 1 Black on Judgments (2d Ed.) § 126; Mohun's Case, 6 Mod. 59; Mayor of Norwich v. Berry, 4 Burr, 2277; Evans v. Rees, 12 Adol. & E. 167 (40 Eng. Com. Law, 46); Mitchell v. Overman, 103 U.S. 62, 26 L.Ed. 369; Sanderson v. United States, 210 U.S. 168, 28 S.Ct. 661, 52 L.Ed. 1007; Hess v. Cole, 23 N. J. Law, 116. The general principle is that, whenever delay in entering a judgment is caused by the action of the court, judgment nunc pro tunc will be allowed as of the time when the party would otherwise have been entitled to it if justice requires it. See McNamara v. New York, L. E. & W. R. Co., 56 N. J. Law, 56, 28 A. 313; Ferrell v. Hales, 119 N.C. 199, 25 S.E. 821; 15 R. C. L. pp. 622-629. The power to enter a judgment nunc pro tunc is often exercised after one of the parties to the action dies, or in case of a corporation after its dissolution. 15 R. C. L., p. 626.'

So it appears clear that the defendant was entitled to have a judgment entered when the motion for new trial was denied, and the fact that the court failed to have the judgment entered upon the court minutes does not deprive the defendant of his right to such entry later. When such judgment is entered by the court during a subsequent term, it becomes by operation of law a judgment nunc pro tunc as of the date of the denying of motion for new trial, if the order denying same was entered in term time. The plaintiff in error here has no cause to complain that the judgment was not made effective from the date when the defendant was entitled to have it entered, and, therefore, if error occurred in that regard, it was harmless error.

The judgment should be affirmed, and it is so ordered.

Affirmed.

WHITFIELD, C.J., and TERRELL, J., concur.

DAVIS, J., concurs in the conclusion.

BROWN J., dissents in part.

DISSENTING

BROWN, Justice (dissenting in part).

I concur in the judgment of affirmance, but not in all the statements made in the opinion.

Strictly speaking, the doctrine of the entry of judgments nunc pro tunc does not apply in this case. There was no motion made for the entry of such a judgment, nor did the judgment which was rendered state that it was entered nunc pro tunc. The judgment as rendered on November 16, 1934, correctly recites the verdict rendered on May 3, 1934, and then proceeds with the usual and proper form of judgment appropriate to such a verdict.

The sole question presented is whether the circuit court has power, at a succeeding term, to render judgment in a cause in which there had been a verdict rendered and motion for new trial denied during a preceding term.

The theory underlying nunc pro tunc judgments is that the judgment was in fact rendered at the appropriate time, but that by inadvertence or clerical error was not entered of record, and that this failure can be cured at a subsequent term by the rendition of a judgment nunc pro tunc. The rendition of a judgment is a judicial act; the entry of it is ministerial. There is no such condition here, nor does the record show, that any judgment had been pronounced or rendered at the preceding term. So, the question is whether the court can, during the term succeeding the trial and verdict, render and enter a...