Sisson v. Leonard
| Decision Date | 22 December 1942 |
| Docket Number | 6 Div. 33. |
| Citation | 11 So.2d 144,243 Ala. 546 |
| Parties | SISSON v. LEONARD. |
| Court | Alabama Supreme Court |
L.C. Albright, of Birmingham, for appellant.
Pritchard, Aird & Fox, of Birmingham, for appellee.
The chief question on this appeal relates to the power of a circuit court sitting in equity to grant a motion to amend nunc pro tunc a former decree signed by the judge and entered by substituting another in its place materially different after the expiration of thirty days from its rendition.
The order granting the motion and thus amending the decree is not here under direct review as for any error, except such as may render it void on collateral attack.
A short recital of the status of the record is necessary to an understanding clearly of the question.
On May 27, 1939, a decree of the Circuit Court of Jefferson County Alabama, granted a divorce to appellant from James Dwight Leonard, who is not involved directly in the instant controversy. That decree awarded the custody of their child to this appellee, who is the father of the respondent in the divorce suit, and grandfather of the child.
Appellant became a resident of Georgia, and pursuant to the terms of the divorce decree, appellee did on July 15, 1941, permit the child to visit his mother, appellant, in Georgia, but she refused to return him to appellee, for reasons detailed in her pleading here under consideration; but those reasons are not a part of the subject matter of this appeal.
Appellee sued out habeas corpus in Georgia on the basis of the faith and credit of the decree in Alabama, awarding him custody of the child, and secured his custody by a judgment in that state and returned to Alabama with the child. Appellant has removed to Alabama, and has remarried as has also the father of her child.
The instant proceeding grew out of an ancillary petition by appellee to the Circuit Court of Jefferson County which granted the divorce and awarded the custody of the child to appellee, whereby he sought to have appellant adjudged to be in contempt of that court. In answer to the rule nisi appellant set out her reasons for not returning the child and incorporated in it a petition to that court to make substantial changes in the former decree which had awarded his custody to appellee.
Demurrer to this petition was sustained with leave to amend. An amendment was immediately filed. A motion to strike and objection to filing it were not acted on. In that status it was heard. Evidence was taken orally before the court which is set out in this record. At the conclusion of the evidence, the court made announcement of his decision on the issues. This is also set out in the record. And on the same day on which the trial was had, which was November 28, 1941, a decree was signed by the judge and entered. It recited: "It is therefore ordered, adjudged and decreed that complainant (meaning this appellant) be and she is hereby denied relief prayed for in her petition for custody of the minor child of the parties." It had other formal parts. No reference was made in the decree to the contempt charge, nor is there shown to have been another decree in that connection, although the court announced that appellant would not be held in contempt.
On January 21, 1942, a motion was presented to the same judge by appellant seeking an amendment nunc pro tunc of the decree of November 28, 1941, by substituting a new one, which was in substance merely a denial of the petition of appellee for a decree adjudging appellant in contempt and a discharge from it, with no other feature here material, and leaving out any ruling on the petition for the custody of the child. This motion was set down for hearing. And on the hearing had on January 23, 1942, the court (same judge presiding) granted the motion and ordered the amendment, so that the decree of November 28, 1941, was adjudged to be as set out in the motion, rather than as signed on the day of the trial. There was no appeal from that decree, nor other effort to have it vacated.
Thereupon on February 11, 1942, the cause came on for hearing as recited in a decree of that date before another judge of the same court, and appellee filed objection to further consideration of appellant's petition for the custody of the child on the ground, in substance, that the controversy as to the custody of the child had been disposed of by the court in its decree of November 28, 1941, supra, as originally entered, and that the order amending it made on January 23, 1942, was void. The court sustained the objection of appellee and dismissed the petition of appellant.
That is the decree from which the appeal was taken and it is assigned as error. Also the original decree of November 28, 1941, is assigned as error, but no appeal was taken from it.
The attack made on the decree of January 23, 1942, amending that of November 28, 1941, is but collateral, and on the ground that the court had no power thus to amend the decree by the substitution of another for it. So that we cannot consider the question of whether the evidence offered in support of the motion to amend was sufficient in fact or law. The sole and only inquiry is whether the court had the legal power at that time thus to amend the decree of November 28, 1941.
This was not done within thirty days, nor was the motion to do so filed in that time. It can only be supported therefore as an amendment nunc pro tunc, if at all.
We will consider the grounds specially assigned in the objections of appellee filed in the cause, and no others. We have stated them in substance.
At common law, courts were not authorized to amend judgments after the lapse of the term at which they were rendered, except for clerical errors. Van Dyke v. State, 22 Ala. 57; Buchanon v. Thomason, 70 Ala. 401; Whorley v. Memphis & C.R. Co., 72 Ala. 20, 25; Robertson v. King, 120 Ala. 459, 24 So. 929; Chamblee v. Cole, 128 Ala. 649, 30 So. 630; Wynn v. McCraney, 156 Ala. 630, 46 So. 854; Campbell v. Beyers, 189 Ala. 307, 66 So. 651; 34 Corpus Juris 215. Notice of the proposed amendment was not then necessary. Nabers v. Meredith, 67 Ala. 333; Ware v. Kent, 123 Ala. 427, 26 So. 208, 82 Am.St.Rep. 132.
In 1824 a statute was adopted and it appeared in Clay's Digest, 322, section 55; Code of 1852, section 2401; Code of 1867, section 2807; Code of 1876, section 3154, and in all subsequent codes, whereby judgments could be amended at a subsequent term for any clerical error, mistake in the calculation of interest or other mistake of the clerk (now also of the register).
An Act of March 1, 1881 (page 66), provided for ten days' notice of all proceedings in courts of record to amend judgments, decrees or orders nunc pro tunc, provided it should not apply to clerical errors, nor to amendments made during the term.
This was made section 2867, Code of 1886, and as codified it makes notice essential to a motion to amend nunc pro tunc a judgment or decree of a court of record, "if the amendment be not of mere clerical errors." And in that code there was also brought down the statute first enacted in 1824, supra, providing for the amendment of clerical errors and mistakes of the clerk, making it section 2836. Those two statutes have been brought down to date as sections 566 and 567, Title 7, Code of 1940. But without those statutes all courts of general jurisdiction have the power to correct clerical errors, after the expiration of the term, when the record affords matter upon which to base such correction. Otherwise "after its final adjournment its judgments are (were) absolute and conclusive, and the court has (had) no power over them."
This seems to amend the common law so as to add the power of amendment to "other mistake[s] of the clerk" (though not merely clerical). Whorley v. Memphis & C.R.R.
Co., supra. For the court had the inherent power to amend after the term all clerical errors. We take it that a mistake "in the calculation of interest" as set out in the statute is also a clerical error.
We now have other mistakes of the clerk, not a mere clerical error which by statut...
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Eaton v. Capps
...by amendment of judgments nunc pro tunc when the official record affords matter upon which to base such correction, Sisson v. Leonard, 243 Ala. 546, 11 So.2d 144. To correct manifest injustice, a court may apply the common law remedy, especially where the statutory time for amendment has ru......
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...rulings in all of the above instances depends upon whether amendment of the minutes was to correct a clerical error. In Sisson v. Leonard, 243 Ala. 546, 11 So.2d 144, 146, Justice Foster reviewed and summarized the principles relative to the power of a court to correct its records by amendm......
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...they were always necessary to justify an order nunc pro tunc. * * *' Du Pree v. Hart, 242 Ala. 690, 693, 8 So.2d 183. In Sisson v. Leonard, 243 Ala. 546, 11 So.2d 144, the court discussed at some length the principles governing amendment of decrees more than thirty days after rendition. Amo......
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...or defect by the appellate court, unless the court of original jurisdiction refuses to make the amendment." In the case of Sisson v. Leonard, Ala.Sup., 11 So.2d 144, decided at this term, Mr. Justice Foster, writing for court, said: "If a judge makes a docket memorandum of his judgment, and......