Powell v. Blevins
| Decision Date | 15 February 1963 |
| Citation | 365 S.W.2d 104 |
| Parties | Earle V. POWELL, Commissioner, Appellant, v. Verna BLEVINS, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Paul E. Tierney, Forest Smith, Dept. of Economic Security, for appellant.
J. L. Lewis, Paintsville, for appellee.
This case is before us on the appellee's motion to dismiss the appeal because the record was not filed with this court within 60 days from the date the notice of appeal was filed, nor was an order for extension made before expiration of that period. CR 73.08.
The 60-day period following the notice of appeal ended on October 15, 1962. Meanwhile, the circuit court clerk had informed counsel for appellant that the record could not be prepared in time, and on October 8 counsel had prepared and mailed to the clerk an order extending the time, with instructions to have it signed within the original 60-day limit (as required by CR 73.08). Whether this tendered order was placed in the hands of the circuit judge on or before October 15 is not disclosed by the papers before us, but it is clear on the record that the signed order was filed with the circuit clerk on October 20, five days too late. Thereafter, on October 30, the following 'Nunc Pro Tunc Order' was entered by the circuit court:
'A timely request having been filed for extension of time for the filing of the record on the appeal of the above styled case and this court having considered same and ordered the extension of time as requested and ordered same filed, and the date of the order was inadvertently entered by the Court as October 20, 1962, when in fact it should have been and was intended to have been dated as of October 10, 1962, and it is now ordered by the court that said order of extension of time for filing of the record herein shall be noted of record and treated as having been dated October 10, 1962; to which ruling of the court both parties except.'
CR 73.08 does not authorize the circuit court to extend the time for filing the record on appeal unless 'its order for extension is made before the expiration of the period for filing as originally prescribed or as extended by a previous order,' etc. (Emphasis added.) This requirement is mandatory. Cf. Clay, Kentucky Civil Rules, CR 73.08, Comments 3 and 5; Commonwealth v. Black, Ky.1959, 329 S.W.2d 192, 193.
An order becomes effective when it is entered by the circuit clerk in the manner directed by CR 58. Regardless of when it may have been signed or how it may be 'dated,' it cannot be an order before it reaches the clerk. Therefore, in this case there was no order of extension 'made before the expiration of the period for filing.'
It is contended, however, that the circuit court had the power to correct the oversight nune pro tunc pursuant to CR 75.08, which provides that an erroneous or incomplete record may be corrected and 'made to conform to the truth.' But what is the truth in this case? That a...
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U.S. v. Craft
...of judicial action. Nunc pro tunc orders are generally used to correct ministerial or clerical errors and oversight. Powell v. Blevins, 365 S.W.2d 104 (Ky.Ct.App.1963). In Powell, the court stated that nunc pro tunc orders "must tie back to some tangible record made at the time. In no event......
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...something that actually happened but was not recorded, e.g., Crosby v. Mills, 413 F.2d 1273, 1277 (10th Cir.1969); Powell v. Blevins, 365 S.W.2d 104, 106 (Ky.1963), some that they may be entered to achieve equity even though so doing supplies an action that did not occur on the earlier date......
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...rendered, but which had not been entered of record as rendered. Carroll v. Carroll, 338 S.W.2d 694 (Ky. 1960). See also Powell v. Blevins, 365 S.W.2d 104, 106 (Ky. 1963); James v. Hillerich & Bradsby Co., 299 S.W.2d 92, 94 (Ky. 1956); Benton v. King, 199 Ky. 307, 250 S.W. 1002, 1003 (1923).......
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