Jude v. Morwood Sawmill, Inc., 86-CA-585-MR
| Decision Date | 20 March 1987 |
| Docket Number | No. 86-CA-585-MR,86-CA-585-MR |
| Citation | 726 S.W.2d 324 |
| Parties | Harrison JUDE, Appellant, v. MORWOOD SAWMILL, INC., Appellee. |
| Court | Kentucky Court of Appeals |
John R. Triplett, Inez, for appellant.
Buddy R. Salyer, P.S.C., Morehead, for appellee.
Before COMBS, GUDGEL and McDONALD, JJ.
In early 1981, a Kentucky corporation, Morwood Sawmill, Inc., (hereinafter Morwood) and a West Virginia corporation, Kermit Lumber and Pressure Treating, Inc. (hereinafter Kermit) entered into an agreement whereby Kermit was to purchase lumber supplied by Morwood. On October 26, 1981, Harrison Jude, president of Kermit, signed a personal guaranty to insure payment of Kermit's debts to Morwood. The guaranty was signed in West Virginia.
During the year preceding the agreement, Morwood delivered approximately $300,000 worth of lumber to Kermit. However, Kermit did not pay for approximately $31,000 worth of the lumber.
On August 21, 1984, Morwood filed a complaint against Kermit and Harrison Jude, in his individual capacity as guarantor, in order to collect the money owed for the lumber delivered. Jude raised the issue of lack of personal jurisdiction over him both in the answer to the complaint and by separate motion. The trial court ruled that it had personal jurisdiction over Jude.
At trial Jude testified on cross-examination that he had signed the personal guaranty. However, the interrogatory-type instructions submitted to the jury only dealt with the question of the corporate liability of Kermit. No motion for directed verdict was offered by Morwood against Jude. On December 17, 1985, the trial court entered a judgment for plaintiff against the "defendant" (referring to Kermit) for $31,914.08.
On January 13, 1986, Morwood filed a notice to take the post judgment deposition of Harrison Jude on January 30, 1986, pursuant to CR 69.03. Jude then filed a motion for protective order on January 27, 1986, on the ground that no judgment had been entered against him.
The trial court then, without notice or motion to do so, entered a corrected judgment on February 14, 1986. The corrected judgment stated that it was the intent of the court that the word "defendant" in the original judgment be "defendants" and that the omission of the "s" was a clerical mistake which the court was correcting on its own pursuant to CR 60.01.
Harrison Jude then filed a motion to set aside the "Corrective Order" on February 24, 1986. Morwood responded. Subsequently, the trial court entered an order overruling the motion on March 12, 1986. The trial court stated that no interrogatory instructions were submitted to the jury on Harrison Jude's liability because neither side demanded them. Thus, the trial court reasoned that under CR 49.01 the issue of Jude's personal liability remained to be tried by the court as Morwood had submitted proof of the execution of the guaranty and Jude had acknowledged on cross-examination that he had signed the guaranty. This is all well and good but it was not preserved in the record by the trial court or by counsel. Furthermore, it is not the duty of the defendant to request an instruction which would find him liable. The court further stated that it had intended to enter judgment for Morwood against Harrison Jude but due to a clerical mistake, the judgment was against "defendant" instead of "defendants." The corrected judgment was thus a correction of that mistake on the court's own motion under CR 60.01.
Harrison Jude timely appealed. There is no transcript of the trial available for us to review.
The first issue on appeal is whether the trial court erred in amending and altering the judgment more than ten days from the date of the entry of the original judgment and failing to notify the individual defendant Harrison Jude of the proposed amendment of the judgment.
At the time the corrected judgment was entered, CR 60.01 was the only available method for the court to change its original judgment on its own motion. The time for appeal from the original judgment by Morwood had run. The ten-day time frame for motions to amend or for new trial had...
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Potter v. Eli Lilly and Co.
...to the litigation originally. See Wright, Miller and Kane, Federal Practice & Procedure: Civil 2nd § 2852 at 235; Jude v. Morwood Sawmill, Inc., Ky.App., 726 S.W.2d 324 (1987). The crux of the argument presented by Judge Potter is that a trial court has the right and duty to see that its ju......