Mathes v. Kelton
| Decision Date | 14 June 1978 |
| Docket Number | No. B-7437,B-7437 |
| Citation | 569 S.W.2d 876 |
| Parties | Rose F. MATHES, Individually and as Independent Executrix of the Estate of Bill Nabors, Petitioner, v. Etta KELTON, Respondent. |
| Court | Texas Supreme Court |
Jay U. Kirkman, Amarillo, for petitioner.
Miller, Miller & Russell, Dee Miller, Amarillo, for respondent.
Mrs. Rose Mathes brought this suit for the return of a diamond ring and several pieces of furniture alleged to be owned by her and wrongfully held by Mrs. Etta Kelton. Mrs. Kelton filed a cross-action for judgment on a promissory note executed by Mrs. Mathes and for foreclosure on the ring which was pledged as security for the note. At the conclusion of the nonjury trial, the trial judge orally rendered judgment. He ordered Mrs. Kelton to return the furniture to Mrs. Mathes and gave Mrs. Kelton judgment against Mrs. Mathes on the note. Concerning the ring, the statement of facts shows that the trial court ordered it returned to Mrs. Mathes. Accordingly, a written judgment was prepared and signed on December 3, 1976 which complied with the oral pronouncements.
On December 13, 1976, Mrs. Mathes filed a motion for new trial. Also on that date, without notice to Mrs. Mathes, the trial judge signed a second judgment which altered the judgment of December 3 to the extent that Mrs. Kelton was given possession of the ring under foreclosure of the lien securing the note. Mrs. Mathes filed an amended motion for new trial on January 3, 1977. 1 At the hearing on that motion, the trial judge set aside the December 13 judgment on the ground that Mrs. Mathes was not afforded proper notice of the correction, and set a subsequent hearing for determination of whether a corrected judgment should be rendered in the case. Mrs. Mathes' amended motion for new trial was overruled in an order dated February 9, 1977. After the second hearing, the trial judge rendered a "corrected judgment" on February 11, 1977 which stated that it was a correction, nunc pro tunc, of the December 4 (sic), 1976 judgment. Again possession of the ring was awarded to Mrs. Kelton under foreclosure of the security interest. Mrs. Mathes appealed, arguing that the February 11 judgment did not validly change the December 3 judgment. She contends that changing possession of the ring constituted the correction of a judicial error which cannot be done by a judgment nunc pro tunc.
The Court of Civil Appeals upheld the validity of the February 11 judgment. 565 S.W.2d 78. 2 It concluded that the change in the award of possession of the ring was a clerical error and, therefore, correction by the judgment nunc pro tunc was valid. In its determination that a clerical error was involved, the Court relied upon the trial judge's statements that the December 3 judgment did not accurately reflect his decision in the case. He stated that he always intended for Mrs. Kelton to have possession of the ring under a foreclosure of the lien securing the note.
It is well settled that a judicial error cannot be corrected by a judgment nunc pro tunc. Finlay v. Jones, 435 S.W.2d 136 (Tex.1968). One example of the correction of a judicial error is where the trial court determines that the terms of the judgment as rendered should be changed. Dikeman v. Snell, 490 S.W.2d 183 (Tex.1973); McHone v. Gibbs, 469 S.W.2d 789 (Tex.1971); Reavley and Orr, Trial Court's Power to Amend Its Judgments, 25 Baylor L.Rev. 191, 197 (1973). In the present case, by changing the party entitled to possession of the ring from Mrs. Mathes to Mrs. Kelton, the February 11 judgment materially altered the substance of the December 3 judgment. That change constituted the correction of a judicial error which cannot be validly accomplished by a judgment nunc pro tunc.
While the February 11 judgment cannot be upheld as...
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