Lindsay v. Atkin, 18638
Decision Date | 21 March 1984 |
Docket Number | No. 18638,18638 |
Citation | 680 P.2d 401 |
Parties | Ray LINDSAY, Plaintiff, v. Lee C. ATKIN and Peter A. Nyberg, Defendants and Appellants, v. PARRISH OIL TOOLS, INC., Defendant and Respondent. |
Court | Utah Supreme Court |
LaMar J. Winward, St. George, John S. Snow and David Halliday, Salt Lake City, for defendants and appellants.
James F. Shumate, Cedar City, for plaintiff.
Robert McRae, Vernal, for defendant and respondent.
The question on this appeal is whether the trial court abused its discretion by denying a motion to correct its earlier order "nunc pro tunc." The order dismissed Parrish Oil Tools, Inc. ("Parrish Oil Tools"), defendant, from the lawsuit "with prejudice," and defendant sought a change to reflect a dismissal "without prejudice." We affirm the trial court's order.
Plaintiff Lindsay sued appellants Atkin and Nyberg in May 1978 in Duchesne County District Court on a promissory note executed by appellants naming Southern Utah Hay Company ("Southern Utah Hay") as promisor and Lindsay as promisee. Atkin and Nyberg defended on the ground that a second note had been substituted for the first, relieving them of liability to Lindsay. In March 1980, Parrish Oil Tools and others were brought into the suit as defendants on Lindsay's motion to include all parties with an interest in the action. Subsequently, the parties determined that Parrish Oil Tools was a limited partner in Southern Utah Hay. At a pretrial conference in July 1980, Lindsay's counsel stated that, as a limited partner, Parrish Oil Tools was not a proper party and "should be out if [their counsel] would submit his order." Counsel for Parrish Oil Tools submitted an order to the trial court that was signed August 6, 1980, and read as follows:
Based upon the pleadings and exhibits in this case and good cause appearing a [sic] Order of Dismissal with Prejudice should be granted to Defendant Parrish Oil Tools Incorporated.
It is therefore ordered that Defendant Parrish Oil Tools, Incorporated is dismissed out of this lawsuit with prejudice.
At trial, Atkin and Nyberg were found liable on the first promissory note, and a judgment was entered against them on October 30, 1980. No appeal was ever filed from either the judgment or the order of dismissal. Having satisfied the judgment, Atkin and Nyberg instituted an action in Washington County District Court stating a claim against Parrish Oil Tools, apparently for indemnification or contribution. Parrish Oil Tools raised the above dismissal with prejudice as a bar to an action against it in the Washington County suit. On April 18, 1982, Atkin and Nyberg returned to the trial court in Duchesne County and moved to correct the dismissal with prejudice in this case to one without prejudice.
The appellants in this case sought relief pursuant to Utah R.Civ.P. 60(a), which provides for relief from "[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission." This Court has differentiated between clerical errors and judicial errors, stating:
The distinction between a judicial error and a clerical error does not depend upon who made it. Rather, it depends on whether it was made in rendering the judgment or in recording the judgment as rendered. 46 Am.Jur.2d Judgments § 202.
Richards v. Siddoway, 24 Utah 2d 314, 317, 471 P.2d 143, 145 (1970) (emphasis added). The...
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