Nichols v. Walton

• Court: Florida Supreme Court
• Writing for the Court: WHITFIELD, J.
• Citation: Nichols v. Walton, 82 Fla. 385, 90 So. 157 (Fla. 1921)
• Decision Date: 23 November 1921
• Parties: NICHOLS v. WALTON.

90 So. 157

82 Fla. 385

NICHOLS v. WALTON.

Florida Supreme Court

November 23, 1921

Error to Circuit Court, Palm Beach County; E. C. Davis, Judge.

Action between Morton C. Nichols and Martha E. Walton. From a judgment therein, the former brings error. On motion to strike bill of exceptions from the transcript of record.

Motion denied.

Syllabus by the Court

SYLLABUS

Nunc pro tunc order may correct mistake in failing to enter an order made. An order nunc pro tunc may be made to correct a mistake in failing to enter an order that was actually made.

Nunc pro tunc order may record what was previously done and not entered, but not to supply a wholly omitted order. An order can be entered nunc pro tunc to make a record of what was previously done by the court, although not then entered; but where the court has wholly omitted to make an order, which it might or ought to have made, it cannot afterward be entered nunc pro tunc.

A nunc pro tunc order is presumed made to effectuate an order duly made and omitted from minutes.

In the absence of a contrary showing, the presumption is that a nunc pro tunc order was made to effectuate an order actually and duly made, but which by mistake was omitted from the minutes of the court.

COUNSEL

Frank A. Pettibone, of West Palm Beach, for plaintiff in error.

S. C Kearley, of West Palm Beach, and Fred H. Davis, of Tallahassee, for defendant in error.

OPINION

WHITFIELD J.

Defendant in error presents a motion to strike the bill of exceptions from the transcript of the record brought here on writ of error upon the asserted grounds that the bill of exceptions was made up and signed after the expiration of the term at which the trial was had and the verdict was rendered 'and no special order allowing further time was entered by the trial judge,' and in effect because the entry of the nunc pro tunc order after the adjournment of the term extending the time for settling and signing the bill of exceptions is ineffectual to authorize the authentication of the bill of exceptions after the adjournment of the court for the term.

Rule 97 of the Circuit Court Rules in Actions at Law provides that----

'The bill of exceptions shall be made up and signed during the term of the court at which the verdict is rendered or trial had, unless by special order further time is allowed. In case such special order is made, it shall be entered in the minutes, and in making up the bill of exceptions the fact that such an order was made shall be mentioned therein, or shall otherwise appear in the record.'

The motion does not assert that a special order under the rule extending the time after adjournment for the term, for authenticating the bill of exceptions was not in fact made by the court during the...