In re Cannon's Guardianship

• Decision Date: 01 March 1938
• Docket Number: 27853.
• Citation: 77 P.2d 64,182 Okla. 171,1938 OK 129
• Parties: In re CANNON'S GUARDIANSHIP.
• Court: Oklahoma Supreme Court

77 P.2d 64

182 Okla. 171, 1938 OK 129

In re CANNON'S GUARDIANSHIP.

No. 27853.

Supreme Court of Oklahoma

March 1, 1938

Syllabus by the Court.

1. As a general rule a judgment entered nunc pro tunc must be respected and enforced in the same manner and to the same extent as if entered at the proper time. As between the parties thereto, the entry is retrospective, and has the same force and effect as if entered at the time the judgment was rendered.

2. Where parol evidence shows that a surety appeared before the county judge and applied to be released from suretyship on a guardian's bond, and the county judge directed the entry of a minute ordering the guardian to file a new bond and ordering the release of said surety thereupon, but the record does not contain such minute, held, that the evidence justifies the making of an order nunc pro tunc to supply such omission.

3. In a proceedings to obtain an entry nunc pro tunc, the sole issue is of fact, should the entry be ordered. Issues of law relating to the jurisdiction of the court to act in the first instance are immaterial.

4. It is not within the purview of an order nunc pro tunc to operate ex post facto to give validity to an order void for want of jurisdiction. The order merely causes the record to speak the truth as of the date the judgment actually was rendered.

Appeal from District Court, Osage County; Jesse J. Worten, Judge.

Proceeding in the matter of the guardianship of Alex Cannon, an incompetent, wherein Jasper T. Krow applied for an order nunc pro tunc to show that he had been released as a surety upon the bond of the guardian. From a judgment making the order an appeal was taken.

Judgment affirmed.

W. J Mahan, of Fairfax, and McCoy, Craig & Pearson, of Pawhuska for plaintiff in error.

Neal E. McNeill, of Tulsa, for defendant in error.

BAYLESS Vice Chief Justice.

Jasper T. Krow applied to the county court of Osage county, Okl., for an order nunc pro tunc in the matter of the guardianship of Alex Cannon, an incompetent, for the purpose of supplying and completing the records of said court in said guardianship proceedings, to show that said Krow had theretofore been released as a surety upon the bond of the guardian. The application was granted, and an appeal was taken to the district court of Osage county, Okl. Upon trial de novo in the district court, a like order nunc pro tunc was made. This appeal was taken.

Several contentions are made, one relating to the sufficiency of the evidence and others to points of law. It is asserted the evidence is insufficient to justify the making of the order. The legal points may be grouped under the general allegation of a lack of jurisdiction on the part of the county court to make the order of release in the first instance, which necessarily carries with it a like argument concerning the jurisdiction to enter the order nunc pro tunc. We will consider the question of the sufficiency of the evidence first.

In 1919, J. O. Cales, guardian of said incompetent, filed a bond for the penal sum of $15,000, as such guardian, with Krow and others as sureties. Early in 1923, because of a controversy between the Superintendent of the Osage Agency and certain guardians, among whom was Cales, the said Superintendent addressed a letter to Krow and his fellow sureties advising them either that they had been sued or would be sued along with Cales to settle the controversy. They met a fellow townsman, who had received a similar letter relating to a bond on which he was surety, and upon consultation they decided to go to Pawhuska to investigate the matter. At Pawhuska they consulted with a friend, and he advised them to go to the Osage Agency and give notice of their withdrawal as sureties on said bonds. We only mention this other surety as corroboration of Krow as to what happened to him-otherwise, it has no part in this cause. At the Osage Agency they were advised to take the matter up with the county judge. They went to the county judge's office and discussed the matter with him. These three sureties and the county judge testified to virtually the same facts, and we will point out wherein they differ. The sureties advised him they wished to be released. The county judge advised them this would be agreeable, as he desired that the guardians furnish bonds with corporate surety in all cases. They testify that the county judge thereupon had prepared an application, on their behalf, for release, and Krow signed it, and left it with the county judge. The county judge says he prepared no application, but did dictate a minute to his clerk, to be entered in the records, directing Cales to file a new bond, and that, upon the filing and approval of such bond, Krow be released from future liability. He likewise dictated a letter to Cales to order a new bond. The exact date of this is not shown, but one of the witnesses places it as after the death of his father, which occurred in March, 1923. June 20, 1923, Cales filed a bond for $10,000 with corporate surety, and said bond recites: "The condition of the above obligation is such, that where as by order of the County Court of Osage County, State of Oklahoma, made and entered on the 6th day of June, A. D. 1923, the above named principal was appointed guardian of the person and estate of the above named * * * directed to execute an additional bond. * * *"

It is proper to say at this point that at the time of the filing of the application for order nunc pro tunc, the records in the guardianship proceedings were absolutely bare of any evidence or suggestion of an application for release or order directing new bond and releasing sureties. April 21, 1936, Krow applied for an order nunc pro tunc to establish and complete the record.

We are of the opinion that the evidence is sufficient to justify the county court in the first instance, and the district court on appeal, entering the order nunc pro tunc. We hold that the opinion in the case of Courtney v. Barnett, 65 Okl 189, 166 P. 207, controls in this...