Happy Coal Co. v. Brashear
| Decision Date | 13 December 1935 |
| Citation | 263 Ky. 257 |
| Parties | Happy Coal Co. v. Brashear. |
| Court | United States State Supreme Court — District of Kentucky |
1. Appeal and Error. — Refusal to permit filing of amended answer held harmless, where plaintiffs proved everything that would have been required of them under amended answer.
2. Evidence. — In action for coal royalties, testimony as to conversations with president of defendant mining company wherein he admitted indebtedness to plaintiffs and promise to pay held admissible.
3. Mines and Minerals. — In action for coal royalties, evidence of contract between plaintiffs and defendant for payment of royalties held sufficient to authorize recovery.
4. Motions. — Order book entry dated July 18th had status of entry made on July 17th, where court had in order book entry made on July 17th directed clerk to make order book entry in question on July 17th.
5. Appeal and Error. — Appeals can be prosecuted to Court of Appeals only from acts of court final in their nature (Civil Code of Practice, secs. 266, 267, 298, 368).
6. Courts — Pleading. — Orders, such as order striking matter from a pleading, which involve exercise of judicial discretion and affect final result of litigation, although they do not of themselves finally fix rights of parties, are "judicial orders," as distinguished from "administrative orders," such as order extending a term, which involve exercise of administrative discretion only and do not adjudicate any issue involved in litigation (Civil Code of Practice, sec. 622).
7. Judgment. — Necessary elements of any valid judgment or order are judicial elements, which involves discretion, or court's determination, usually evidenced by oral pronouncement, but often by written opinion, direction, or decree, and clerical element, which involves obedience or enrollment or entry by clerk of court's action, or essential part thereof, upon order book or record of court (Civil Code of Practice, sec. 392).
8. Courts. — Court has inherent control of record, and its determination is not subject to defeat by any ministerial act or omission of clerk, although only competent evidence of judicial action must usually be found in record supplied by ministerial act of clerk (Ky. Stats., sec. 378).
9. Motions. — Order read and signed in accordance with statute is settled, except for control of order which court has during whole of term at which order was made and power to make record speak truth which court has even after conclusion of term (Ky. Stats., sec. 378).
10. Motions. — Courts have inherent power to enter orders nunc pro tunc.
11. Evidence. — Presumption of correctness of court's action in making order book entry of order nunc pro tunc extending term is as great as presumption in favor of anything in record.
12. Appeal and Error. — Appellant who claimed that order entered nunc pro tunc was void was required to prove from record that order was void.
13. Appeal and Error. — Order entered nunc pro tunc will not be disturbed unless it affirmatively appears that previous verbal order was not made.
14. Courts — Judgment. — Order nunc pro tunc extending term for six more days held valid, and to authorize entry of judgment after trial had during period of extension, notwithstanding clerk did not write out original order extending term for 6 more days, but replaced figure 6 in previous order book entry extending term for 6 days with figure 12, where there was no claim that clerk's failure to make proper entry misled complaining party or affected result of trial (Ky. Stats., secs. 378, 965-33, and sec. 971-13, as amended Acts 1932, c. 61, sec. 5; Civil Code of Practice, secs. 134, 756).
15. Courts. — Litigant is ordinarily entitled to notice and opportunity to be heard before any amendment or correction of record is made whereby his rights may be affected, but not where controversy is raised by his own motion.
16. Motions. — Court could enter order nunc pro tunc on its own motion.
17. Motions. — To secure reversal for nunc pro tunc entry of administrative order, substantial prejudice must be shown (Civil Code of Practice, secs. 134, 756).
18. Judgment. — Judgment may be entered nunc pro tunc where some minute, memorandum, or paper in record shows that court had acted on matter and what court's action was, so that nothing judicial remains to be done but to direct clerk to supply clerical element and to put in proper form evidence of court's action already informally appearing.
19. Motions. — Office of nunc pro tunc entry is to enter now for then order previously made so as to put on record proper evidence of actual proceeding already taken, and not to cure defect caused by failure to take such proceeding by making order now for then.
20. Courts. — Court may require clerk by nunc pro tunc entry to so amend or make his record as to properly show what court had then actually done, but cannot by such means create or supply judgment not previously made.
Appeal from Perry Circuit Court.
CRAFT & STANFILL for appellant.
JESSE MORGAN for appellees.
OPINION OF THE COURT BY DRURY, COMMISSIONER.Affirming.
This is an appeal from a judgment for $2,230.50 recovered by Felix Brashear et al., entered July 17, 1934, the enforcement of which has been stopped by a supersedeas served on them August 16, 1934. There were other claims and another defendant, but on this appeal we are dealing only with the claim of $2,230.50 and the Happy Coal Company.
Claims Sued On.
Plaintiffs alleged that on March 6, 1917, they executed a written lease by which they let to A.C. Rhinehart for 50 years the exclusive right to mine and remove coal from 450 acres of land at a royalty of 9 cents per ton. That on December 7, 1928, Rhinehart sold all his rights in the leased premises to the defendants, and that the defendants are indebted to plaintiffs $2,257.21 for royalty on coal mined by them under said lease. This royalty was past due, and payment had been demanded of the defendants.
The Answer.
Defendants in their original answer denied owing plaintiffs anything, denied any royalty was past due, or that payment had been demanded or that they had promised to pay it.
The Amended Answer Tendered.
On the day this case was called for trial, the Happy Coal Company tendered an amended answer in which it denied it was the owner of this Rhinehart lease, denied that it had mined any coal under it, had rendered plaintiffs any statements of royalties on any coal mined under it, or had promised to pay plaintiffs any part of the royalty sued on.
The court refused to permit this answer to be filed, and that is one of the grounds urged for reversal, but as the plaintiffs, in order to succeed, did prove everything they would have had to prove under the amended answer, we cannot see how the Happy Coal Company was prejudiced by the court's refusal to file it.
The Proof.
Evidence for the plaintiffs established that the defendants had been mining coal under this Rhinehart lease for several years; that they had fallen behind in their royalties; and that by payments made the royalties due were some years ago reduced to a balance of $1,000, which they refer to as "the back royalty"; and that on September 5, 1932, they wrote the attorney for the plaintiffs a letter containing this:
They did neither, and this suit was for:
Back royalty ..................................... $1,000.00
Royalties falling due November 1st, 1932 ......... 344.25
Royalties falling due December 1st, 1932 ......... 219.87
Royalties falling due January 1st, 1933 .......... 280.44
Royalties falling due February 1st, 1933 ......... 248.13
Royalties falling due March 1st, 1933 ............ 164.52
Total ............................................ $2,257.21
The plaintiffs checked over the books of the two coal companies and found they had made an error against themselves in the statements rendered plaintiffs of $26.71 for which they were given allowance, and judgment taken for $2,230.50. From letters in this record written by and for the defendant, it is evident that the only reason this had not been paid was lack of funds.
Alleged Errors in Evidence.
The following questions were objected to and the defendant excepted when the court allowed them to be answered:
Just why these conversations with the president of the defendants should not be admitted we cannot understand, and appellant does not point out any reason in brief.
All the other rulings on the evidence were in favor of the defendants.
The Contract as to Royalties.
Among other grounds, the Happy Coal Company sought a new trial "because there was no evidence of any contract such as alleged in the petition between the plaintiffs and the Happy Coal Company about the payment of any royalties on the coal mined, and...
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