Melton v. St. Louis, Iron Mountain & Southern Railway Co.
| Decision Date | 19 June 1911 |
| Citation | 139 S.W. 289,99 Ark. 433 |
| Parties | MELTON v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Lawrence Circuit Court; R. E. Jeffery, Judge; affirmed.
Judgment affirmed.
Smith & Blackford and Cummingham & Childers, for appellant.
W. E Hemingway, E. B. Kinsworthy, S.D. Campbell and F. R. Suits for appellee.
This is an appeal from a final order of the Lawrence Circuit Court refusing to permit the appellant to file further pleadings in an action which had been pending in that court, and which it held had been finally determined and dismissed at a former term thereof.
On June 17, 1908, the appellant filed his original complaint and instituted an action against the appellee to recover damages for the alleged wrongful death of his minor child. On October 14, 1908, the appellee, who was the defendant in said case, filed a demurrer to this complaint upon the ground that it did not state facts sufficient to constitute a cause of action. On October 16, 1908, this demurrer was submitted to the court for its determination, and the court sustained the same, and, as is shown by a nunc pro tunc order thereafter made, the appellant rested thereon, and in effect refused to plead further, but excepted to the ruling of the court in sustaining the demurrer, and prayed an appeal to the Supreme Court, which was granted. In recording the action and adjudication of the court in sustaining said demurrer, the clerk made an entry stating in substance that the court sustained the demurrer which had been filed to the complaint, to which ruling of the court in sustaining the demurrer the plaintiff (appellant) at the time excepted and asked that his exceptions be noted of record, which was done, and that the defendant (appellee), instead of the plaintiff (appellant), prayed an appeal to the Supreme Court, which was granted. But the record did not show in words or in substance that the plaintiff (appellant) elected to stand upon his complaint and refused to plead further; and it also inadvertently stated that the defendant, instead of the plaintiff, prayed an appeal to the Supreme Court.
On October 26, 1908, the appellant perfected his appeal from the above order of the court sustaining said demurrer by filing a transcript of the proceedings in said cause in the Supreme Court. The case was duly set for submission in the Supreme Court, and thereafter both appellant and appellee filed abstracts and briefs upon the merits of the case in the manner prescribed by the rules of said court, and the case was submitted for its determination. Before the determination of the case by the Supreme Court, its attention was called to the fact that the record did not show the entry of a final judgment by the lower court. Thereupon said submission was opened and set aside, and the appeal was dismissed for the reason that according to the record it was prematurely brought.
On June 1, 1909, the mandate of the Supreme Court was filed in the circuit court, and on June 15 appellant filed in the vacation of that court an amended complaint. On March 19, 1910, the appellee filed a motion in said circuit court for a nunc pro tunc order to correct the order and judgment of that court made on October 16, 1908, when it sustained the demurrer to the complaint. This motion was submitted to the court for its determination on March 21, 1910, and it found that on October 16, 1908, appellee's demurrer to the said original complaint was submitted to the court for its determination and adjudication, and that the demurrer was sustained, to which ruling of the court plaintiff excepted and at the time rested thereon and prayed an appeal to the Supreme Court from said ruling, which appeal was granted. The court thereupon entered a nunc pro tunc order amending the record of October 16, 1908, so that it recited the proceeding and judgment of the court in said cause according to the above finding made by it, and the appellant at the time excepted to the action of the court in so amending its record.
On March 7, 1911, appellant filed a motion in said circuit court asking leave to withdraw his election to stand upon his original complaint in said cause and be permitted to proceed with the trial of the case upon his said amended complaint. The court overruled this motion, and made an order dismissing the cause, and from this last order of the court this appeal is prosecuted. The question upon this appeal involves the power of the circuit court to make the above nunc pro tunc order, and the effect thereof when so made.
It has been well settled that a court may amend its record of a judgment after the lapse of the term at which it was rendered so as to cause it to speak the truth. The entry in the record should reflect correctly the proceedings which were actually had, and the court has full power at any subsequent term thereof to amend its record so as to make it conform with what was actually done. Hershy v. Baer, 45 Ark. 240; St. Louis & N. A. R. Co. v. Bratton, 93 Ark. 234, 124 S.W. 752. When the record is thus amended by the court by a nunc pro tunc order, it relates back to the time when the original entry was made, and, except as to the rights of innocent third parties, the effect thereof is to make the corrected order or amended judgment the same as if it had been entered upon the date when it was actually made. Adams v. Higgins, 23 Fla. 13, 1 So. 321. The amended order or judgment becomes then free from any error, omission or defect caused by clerical misprision or otherwise, and is as final and conclusive against collateral attack from the date when it was actually made as any other final judgment. Crim v. Kessing, 89 Cal. 478, 26 P. 1074.
The nunc pro tunc order entered in this case by the lower court on March 21, 1910, made the order or judgment in the action as thus amended effective as of the date of October 16, 1908, when it was actually made by the court. After the lapse of the term of court following October 16, 1908, that order became final and could not be altered or changed except upon appeal. It could not thereafter be changed, set aside or altered by any further pleading, proceeding or trial in the lower court. In apt time the appellant took and perfected an appeal from that order to the Supreme Court. During the pendency of...
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Union & Mercantile Trust Company v. Hudson
... ... between the case at bar and the case of Melton v ... St. L., I. M. & S. Ry. Co., 99 Ark. 433 ... ...
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Independent Ins. Consultants, Inc. v. First State Bank of Springdale, Ark.
...court's order is ordinarily final. Davis v. Receivers St. L.L. & S.F.R.R., 117 Ark. 393, 174 S.W. 1196 (1915); Melton v. St. Louis, I.M. & S. Ry., 99 Ark. 433, 139 S.W. 289 (1911). It was not appealable in Renner and Bell only because other counts remained undisposed of, as in the case at F......
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Union & Mercantile Trust Co. v. Hudson
...complaint, and refused to plead further. Herein lies the distinction between the case at bar and the case of Melton v. St. L., I. M. & S. Ry. Co., 99 Ark. 433-437, 139 S. W. 289, upon which appellee relies. A careful reading of the opinion in that case will show that it sustains our holding......
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Ozment v. Mann
...parties are not prejudiced by orders made long after the original record of proceedings has been published. In Melton v. St. L. I. M. & S. Ry., 99 Ark. 433, 139 S.W. 289, Justice Frauenthal recognized that the rights of innocent third parties are not to be prejudiced by the entry of an orde......