Interstate Printing Co. v. Department of Revenue, 88-483

• Decision Date: 17 August 1990
• Docket Number: No. 88-483,88-483
• Citation: 236 Neb. 110,459 N.W.2d 519
• Parties: INTERSTATE PRINTING COMPANY, a Nebraska Corporation, Appellant, v. DEPARTMENT OF REVENUE and Donald S. Leuenberger, Tax Commissioner of the State of Nebraska, Appellees.
• Court: Nebraska Supreme Court

Page 519

459 N.W.2d 519

236 Neb. 110

INTERSTATE PRINTING COMPANY, a Nebraska Corporation, Appellant, v. DEPARTMENT OF REVENUE and Donald S. Leuenberger, Tax Commissioner of the State of Nebraska, Appellees.

No. 88-483.

Supreme Court of Nebraska.

Aug. 17, 1990.

Syllabus by the Court

1. Administrative Law: Pleadings: Time: Appeal and Error. Petitions for review in the Supreme Court under Neb.Rev.Stat. § 84-918 (Supp.1989) of the Administrative Procedure Act, filed in the district court before July 1, 1989, are reviewed de novo on the record.

2. Motions for New Trial: Courts: Time: Appeal and Error. A motion for a new trial is restricted to a trial court, and where the district court acts in the capacity of an appellate court, such a motion is not a proper pleading and it does not stop the running of time for perfecting an appeal. This is true whether that court is hearing appeals from the county court or from some other lower tribunal.

3. Judgments: Records. The office of an order nunc pro tunc is to correct a record which has been made so that it will truly record the action had, which through inadvertence or mistake was not truly recorded. It is not the function of an order nunc pro tunc to change or revise a judgment or order, or to set aside a judgment actually rendered, or to render an order different from the one actually rendered, even though such order was not the order intended.

4. Judgments: Records. A court of record has inherent authority to amend its records so as to make them conform to the facts. It is proper for a court to make an entry nunc pro tunc so that its records will speak the truth. Such an order is proper to correct the record of a judgment, but not to correct the judgment itself.

5. Judgments: Time: Appeal and Error. The general rule is that where a judgment is amended in a material and substantial respect, the time within which an appeal from such determination may be taken begins to run from the date of the amendment, although where the amendment relates only to the correction of a clerical or formal error, it does not affect the time allowed for appeal.

6. Judgments: Time: Appeal and Error. If the amendment of a final judgment or decree for the purpose of correcting a clerical error either materially alters rights or obligations determined by the prior judgment or creates a right of appeal where one did not exist before, the time for appeal should be measured from the entry of the amended judgment. If, however, the amendment has neither of these results but, instead, makes changes in the prior judgment which have no adverse effect upon those rights or obligations or the parties' right to appeal, the entry of the amended judgment will not postpone the time within which an appeal must be taken from the original decree.

7. Judgments. Clerical errors may be corrected by an order nunc pro tunc, but judicial errors may not.

8. Judgments. Judicial errors may be corrected by modification or vacation of the judgment entered. A district court has inherent power to modify its judgment during the term in which the judgment was rendered.

9. Taxation. A sales tax is imposed upon the gross receipts from all sales of tangible personal property sold at retail in this state, whereas a use tax is imposed on the storage, use, or other consumption in this state of tangible personal property purchased, leased, or rented from any retailer for storage, use, or other consumption in this state.

10. Taxation. The general theory behind the sales and use taxes is to impose a tax on each item of property, unless specifically excluded, at some point in the chain of commerce.

11. Taxation. The statutes of the state provide exemptions from the sales and use taxes for materials that enter into and become an ingredient or component part of a product manufactured, processed, or fabricated for ultimate sale at retail.

12. Taxation. The statutory scheme of this state does not exclude from taxation material necessary to or consumed in the manufacturing process but which does not actually enter into the final product as an ingredient or component part.

Larry L. Ruth and David D. Cookson, of Knudsen, Berkheimer, Richardson & Endacott, Lincoln, and Louis M. Bruckner, of Finlayson, McKie & Fisk, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and L. Jay Bartel, Lincoln, for appellees.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT and FAHRNBRUCH, JJ.

HASTINGS, Chief Justice.

Pursuant to the Administrative Procedure Act, Interstate Printing Company (Interstate) appeals the order of the district court affirming an order of the state Tax Commissioner dismissing Interstate's protest and petition for redetermination of sales tax and use tax deficiencies assessed by the Nebraska Department of Revenue (department).

Interstate is a printing company located in Omaha. During the period May 1, 1982, through April 30, 1985, Interstate used prepress supplies (developing fluid) in the prepress process and sold prepress materials to its printing customers prior to use of the materials in the prepress or printing process. The department audited Interstate for the period in question and assessed a use tax on the developing fluid used and sales tax on the sale of the prepress materials to Interstate customers. Interstate protested the assessment and petitioned for redetermination.

After making certain adjustments to the notice of deficiency determination, the department caused a hearing to be held before a hearing officer, following which the state Tax Commissioner determined Interstate's protest and petition for redetermination to be without merit and denied the relief prayed for by Interstate.

Interstate appealed to the district court for review under Neb.Rev.Stat. § 84-917 (Supp.1989), as it existed before July 1, 1989, which court found as follows: "[T]he Order of the Commissioner was supported by competent, material, and substantial evidence; it was not in excess of the statutory authority or jurisdiction of the agency; it was not affected by errors of law; and it was not arbitrary nor capricious."

As the petition instituting proceedings for review was filed in the district court before July 1, 1989, under Neb.Rev.Stat. § 84-918 (Supp.1989), this court reviews the matter de novo on the record.

This court raised on its own motion the question of jurisdiction to hear this appeal under the rule expressed in Collection Bureau of Lincoln v. Loos, 233 Neb. 30, 443 N.W.2d 605 (1989), and succeeding cases.

The order of the district court affirming the decision of the commissioner was entered on March 7, 1988. A motion for a new trial and a separate motion for an order nunc pro tunc were filed on March 17, 1988. The district court in effect sustained the motion for an order nunc pro tunc by amending the order of March 7, 1988, and then overruled the motion for a new trial "as to order as corrected," all on April 25, 1988. Interstate's notice of appeal was filed on May 24, 1988.

On the surface it appears obvious that as to the March 7, 1988, order which is in fact being appealed, the notice of appeal was not filed until May 24, 1988, some 68 days after entry of the order and well outside the limits for perfecting an appeal. This, of course, disregards the motion for a new trial.

A motion for a new trial is restricted to a trial court, and where the district court acts in the capacity of an appellate court, such a motion is not a proper pleading and it does not stop the running of time for perfecting an appeal. This is true whether that court is hearing appeals from the county court or from some other lower tribunal. See, Russell v. Luevano, 234 Neb. 581, 452 N.W.2d 43 (1990); In re Conservatorship of Mosel, 234 Neb. 86, 449 N.W.2d 220 (1989); In re Guardianship and Conservatorship of Sim, 233 Neb. 825, 448 N.W.2d 406 (1989); Collection Bureau of Lincoln v. Loos, supra.

Without more, the appeal would seem to be out of time, and this court would have no jurisdiction. However, Interstate argues that it was necessary to amend the district court's order of March 7, 1988, before there was any final order from which to appeal because the order had not affirmed the commissioner's order of July 9, 1987.

The order of the Tax Commissioner which was appealed to the district court was entered on July 9, 1987. The petition of Interstate prayed that "the order of the State Tax Commissioner entered herein on July 10, 1987 be reversed...." (Emphasis supplied.) The order of the district court recites that Interstate has "appealed from an Order dated July 9, 1987" (apparently the correct date), but in the decretal portion of its order it recites that "the Order dated December 2, 1986 be affirmed...." (Emphasis supplied.) Following the filing of Interstate's motion for an order nunc pro tunc, the court made a minute entry which recited that the "[o]rder dated March 7, 1988 [is] amended nunc pro tunc as to the last paragraph to reflect the correct date as July 9, 1987."

The office of an order nunc pro tunc is to correct a record which has been made so that it will truly record the action had, which through inadvertence or mistake was not truly recorded. It is not the function of an order nunc pro tunc to change or revise a judgment or order, or to set aside a judgment actually rendered, or to render an order different from the one actually rendered, even though such order was not the order intended. Continental Oil Co. v. Harris, 214 Neb. 422, 333 N.W.2d 921 (1983).

In Gunia v. Morton, 175 Neb. 53, 56, 120 N.W.2d 371, 373 (1963), the distinction between clerical errors and judicial errors was discussed:

A court of record has inherent authority to amend its records so as to make them conform to the facts. It is proper for a court to make an entry nunc pro tunc so that its records will speak the truth. [Citation omitted.] Such an order is proper to correct the record of a judgment, but not to correct the...