Gorum v. Samuel, 3 Div. 938
| Citation | 274 Ala. 690,151 So.2d 393 |
| Decision Date | 21 February 1963 |
| Docket Number | 3 Div. 938 |
| Court | Supreme Court of Alabama |
| Parties | Lewis GORUM, as Administrator, v. Mary Ella SAMUEL. |
Prestwood & Prestwood, Andalusia, for appellant.
Brooks & Garrett and Joe S. Thompson, Jr., Brewton, and J. O. Sentell, Jr., Montgomery, for appellee.
The appellant, acting in his fiduciary capacity as administrator of the estate of Joseph Baker, deceased, filed suit in the circuit court of Escambia County, Alabama, to recover judgment for damages against defendant (appellee here). The complaint alleged that the defendant operated an automobile against the person of plaintiff's intestate, thereby inflicting injuries which caused his death. The jury returned a verdict for the defendant. Appellant appeals from a purported judgment rendered on the verdict of jury and entered on the minutes of the court.
The first transcript filed here has the usual certificate of the circuit clerk that pages 1 to 72 thereof, contains a full and complete record of the proceedings in the circuit court in said cause.
When filed with the clerk of this court, the transcript included page 67A upon which appears a regular and formal judgment for the defendant, together with a judgment in her favor for the court costs. The judgment appears to have been signed by the circuit judge and bears no date of rendition or entry on the minutes of the court.
Pursuant to a motion which appellee filed in this court, and of which appellant had notice, we issued an order granting leave to appellee to file in the circuit court of Escambia County a motion to amend the judgment nunc pro tunc so that the record in the cause may be true and correct, or to render proper judgment upon the verdict of the jury, and to have the same entered upon the minutes of the circuit court.
The circuit clerk of Escambia County had certified to this court a supplemental transcript of the motion and the proceedings of the circuit court of Escambia County thereon pursuant to the authorization of this court. The filing of the transcript made it a part of the record of this court for consideration on this appeal. It is conclusive and unimpeachable as it now appears. Johnson v. Bryars, 264 Ala. 243, 86 So.2d 371(5).
Also, the supplemental transcript contains a certificate of counsel for defendant (appellee here) that he mailed a copy of the motion, and of the proposed time for hearing, postage prepaid, to attorneys for the plaintiff at their address in Andalusia, Alabama.
The trial judge, in his order on the motion, set out the verdict of the jury with a finding that it was returned in open court on March 25, 1960. In addition, the order contains a finding of facts that the trial court did not pronounce or render any judgment upon the verdict of the jury, nor did it make any bench notes, entries, notations of the verdict on the trial docket; nor any memorandum noting the verdict of the jury or ordering judgment to be entered.
The court further found, according to the order on the motion, that the writing purporting to be the judgment of the court on March 25, 1960, the date the verdict was rendered, shown on page 67A of the transcript on this appeal, and attached to the motion as exhibit 'A', was first presented to the trial judge by an attorney for the plaintiff on December 12, 1960, and was on that date signed by him outside of open court and without the presence of the defendant, or her attorneys, and without notice being given to the defendant, or her attorneys, as required by law; and that no proceeding to render judgment upon the verdict of the jury was ever commenced in the circuit court of Escambia County prior to the filing of the present motion of the defendant. The court further fund that no judgment in the cause had ever been entered on the minutes of the court. The motion contained like allegations of fact.
Following the above finding of facts, the trial court by formal order expunged and held for naught the purported judgment of the court that appears on page 67A of the record on this appeal, and held that it was not the judgment of the trial court.
The order on the motion of defendant then concluded a follows:
'It is further CONSIDERED and ORDERED by the Court that the judgment for the defendant upon the verdict of the jury be, and the same is hereby, rendered, as of the 9th day of May, 1961; and that the same be duly entered upon the minutes.
'It is, therefore, CONSIDERED, ORDERED and ADJUDGED by the Court that the defendant now go hence and have and recover of the plaintiff all court costs in this cause, for which let execution issue.
'DONE, this the 9th day of May, 1961.
On July 13, 1961, appellee filed with the clerk of this court her motion to dismiss the appeal because there was no judgment rendered or in effect at the time the appeal was taken. Submission on the merits and on the motion to dismiss was taken by this court.
After submission appellant filed a motion to strike appellee's motion to dismiss, or in the alternative for a writ of certiorari directed to the circuit clerk of Escambia County. This motion for a writ of certiorari is general and lacks specificity. Both motions were belatedly filed. The proper procedure here applicable is set forth in Ex parte Biddle, 258 Ala. 190, 61 So.2d 803(7), at page 807.
The legislature provided that the circuit courts of the several counties of the state shall be open for the transaction of any and all business, or judicial proceedings of every kind, at all times. Title 13, § 114, Code of Alabama, 1940.
The effect of this statute was to abolish the matter of the terms of court as provided by § 6667, Code of 1923. Term time now means thirty days after the rendition of judgment. Section 119, Title 13, Code of 1940; Kolb v. Swann Chemical Corporation, 245 Ala. 438, 17 So.2d 402(4). Until final judgment is rendered, § 119, supra, has no field of operation.
We held in the case of Johnson v. Bryars, 264 Ala. 243, 86 So.2d 371(15), supra, that an appeal does not prevent the trial court from perfecting its record for use on appeal and that court alone has such authority. Citing Nolan v. Moore, 254 Ala. 74, 46 So.2d 825; Pappot v. Howard, 154 Ala. 306, 45 So.2d 581. See, also, Vol. 34, corpus Juris, Judgments, § 213, p. 74.
The circuit court has inherent power to amend its own record so as to make it speak the truth, within the rules that govern actions in that court and in such cases. Webb v. French, 225 Ala. 617, 144 So. 818(1). Citing §§ 7854, 7855, Code of 1923 (now §§ 566, 567, Title 7, Code of Alabama, 1940).
Every court must have authority to correct its own entries, so as to make them speak the truth, even after adjournment of court, on sufficient evidence. Coffey v. Wilson & Gunter, 2 Ala. 701. 'The source of this inherent power is justice, and therefore the courts must have some discretion in altering their records after the time when they are said to import absolute verity.' Tanner, Adm'r v. Hayes, 47 Ala. 722. See, also, 49 C.J.S. Judgments § 118.
In 34 Corpus Juris, Judgments, § 207, page 72, it is observed:
'A motion for entry of judgment nunc pro tunc is addressed very...
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