Noel's Administratrix v. Black's Administrator

• Decision Date: 24 June 1932
• Citation: 244 Ky. 655
• Parties: Noel's Administratrix v. Black's Administrator.
• Court: United States State Supreme Court — District of Kentucky

Page 655

244 Ky. 655

Noel's Administratrix v. Black's Administrator.

Court of Appeals of Kentucky.

Decided June 24, 1932.

1. Courts. — Court having control of case can enter order supplying its own or clerk's omissions, or putting to record evidence of judicial action taken.

2. Appeal and Error. — Appellate court in equity has power to decide case by directing specific judgment upon reversal of chancellor's decree.

3. Appeal and Error. — Appellate court's termination of case by directing specific judgment upon reversal of chancellor's decree is binding alike on trial and appellate court.

4. Appeal and Error. — Where case was adjudicated on merits, and judgment concluding issues directed, defendant could not have nunc pro tunc order entered sustaining exceptions to certain depositions, each party having had day in court.

5. Appeal and Error. — Where judgment is reversed, and case remanded for proceedings regarding matters not concluded by opinion, trial court may amend record.

6. Appeal and Error. — Note not in issue and respecting which no judgment could have been rendered could not be credited as setoff against judgment by appellate court.

7. Interest. — Interest on indebtedness asserted, not specifically mentioned in judgment for partnership claim, nevertheless followed claim.

8. Interest. — Plaintiff suing for partnership settlement held entitled to interest on his claim from date judgment sustaining commissioner's report should have been entered.

Appeal from Franklin Circuit Court.

LESLIE W. MORRIS, for appellant.

E.C. O'REAR and ALLEN PREWITT, for appellee.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Affirming in part and reversing in part.

It is related in the opinion on the first appeal of this case [Black v. Noel's Admx., 240 Ky. 209, 41 S.W. (2d) 1100] that Howard Black sued the administratrix of S.M. Noel's estate for the settlement of a live stock partnership venture, and claimed $2,127 as his share of the profits. The record did not show that exceptions filed to Black's depositions were ruled upon. Considering his testimony in connection with other evidence, this court concluded that the plaintiff had established a just claim, and reversed the decree with directions to enter judgment accordingly. Black later died, and the case was revived in the name of his administrator.

While the offer to file the mandate in the circuit court was under consideration, the defendant moved to enter an order nunc pro tunc sustaining exceptions to the deposition of Black as of the date her exceptions to the master commissioner's report had been sustained. The motion was supported by affidavit that exceptions to the deposition had been filed and argued before the judge and had been sustained by him, but by inadvertence and mistake the order was not entered of record. The defendant's motion was sustained, and a nunc pro tunc order entered accordingly. Nevertheless the court rendered judgment for the plaintiff "pursuant to the mandate of the Court of Appeals." This appeal is from that judgment. A cross-appeal is prosecuted because interest on the claim was allowed only from the date of the entry of the judgment. The statements as to what had occurred with reference to the exceptions to the deposition are not controverted, and there is no dispute as to the propriety of the nunc pro tunc order except as to the time and effect of its entry.

The appellant submits able argument that it is an unlimited inherent attribute of a court to enter an order supplying its own omission or its clerk's omission or putting to record matters of evidence of judicial action which had been actually taken. Monarch v. Brey, 106 Ky. 688, 51 S.W. 191, 21 Ky. Law Rep. 279; Chester v. Graves, 159 Ky. 244, 166 S.W. 998, Ann. Cas. 1915D, 678; Ralls v. Sharp's Admr., 140 Ky. 744, 131 S.W. 998; Rogers v. Biggstaff's Executor, 176 Ky. 413, 195 S.W. 777; Benton v. King, 199 Ky. 307, 250 S.W. 1002; Vanzant v. Watson, 230 Ky. 316, 19 S.W. (2d) 994; Montgomery v. Viers, 130 Ky. 694, 114 S.W. 251. So long as the case is under the control of the court, that wholesome rule is available and that judicial power undoubtedly exists. But the trial court had lost control of this case.

It is the inherent power of an appellate court in equity suits to decide and terminate a case by directing a specific judgment upon a reversal of the chancellor's decree. Preece v. Woolford, 200 Ky. 604, 255 S.W. 285. When the court exercises that power, it is conclusive and final, binding alike on the trial court and itself. In this case there was an adjudication on the merits and a particular judgment having the effect of concluding the issues directed. Hence, in the absence of some agreement of settlement, there was nothing else for the trial court to do but enter that judgment. Neither party had a right to reopen the record and have a retrial when that stage in the proceedings had been reached. Each had had his day in court. Watson v. Avery, 2 Ky. Op. 240; Western Bank v. Coldeway's Executor, 94 S.W. 1, 29 Ky. Law Rep. 651; Davis v. Davis, 182 Ky. 805, 208 S.W. 6; Bernheim v. Wallace, 186 Ky. 459, 217 S.W. 916, 8 A.L.R. 938; Farmers' Bank & Trust Co. v. Stanley, 190 Ky. 762, 228 S.W. 691; Towles v. Campbell, 215 Ky. 34, 284 S.W. 418; Blackberry, Kentucky & West Virginia Coal & Coke Co. v. Kentland Coal & Coke Co., 225 Ky. 346, 8 S.W. (2d) 425; Owings v....