Southern Farm Bureau Cas. Ins. Co. v. Robinson

• Court: Arkansas Supreme Court
• Writing for the Court: JOHNSON
• Citation: Southern Farm Bureau Cas. Ins. Co. v. Robinson, 379 S.W.2d 8, 238 Ark. 159 (Ark. 1964)
• Decision Date: 18 May 1964
• Docket Number: No. 5-3264,5-3264
• Parties: SOUTHERN FARM BUREAU CASUALTY INS. CO., Appellant, v. Bartis ROBINSON, Appellee.

Page 8

379 S.W.2d 8

238 Ark. 159

SOUTHERN FARM BUREAU CASUALTY INS. CO., Appellant, v. Bartis ROBINSON, Appellee.

No. 5-3264.

Supreme Court of Arkansas.

May 18, 1964.

Cockrill, Laser, McGehee & Sharp, Little Rock, for appellant.

Murphy & Arnold, Batesville, for appellee.

JOHNSON, Justice.

This appeal arises after entry of a nunc pro tunc order following an earlier appeal to this court. In 1958 appellee Bartis Robinson was injured in an automobile accident in Illinois while riding as a passenger in a car driven by Forrest B. Booth, an Arkansas resident and an insured of appellant Southern Farm Bureau Casualty Insurance Company. After the accident Booth returned to Arkansas. Appellee sued Booth in Illinois and obtained a default judgment against Booth for $20,000. Appellant insurer had appeared to defend Booth and then withdrew from the case prior to the default judgment. The Illinois judgment was reduced to an Arkansas judgment on January 2, 1961. After an execution issued against Booth was returned unsatisfied, appellee filed suit directly against appellant under the authority of our 'direct action statute,' Ark.Stat.Ann. § 66-526, since repealed and replaced by Ark.Stat.Ann. § 66-4002 (Supp.1963). Following a jury verdict, judgment was obtained by appellee against appellant. The jury failed or refused to award interest and the court thereafter granted appellee's motion for judgment notwithstanding the verdict to include interest. From the judgment, which totaled $9,637.55, appellant appealed to this court. See Southern Farm Bureau Casualty Ins. Co. v. Robinson, 236 Ark. 268, 365 S.W.2d 454, for additional factual background in this involved litigation as well as the law of that case. ¹ This court held, inter alia, that appellee was entitled as a matter of law to interest if he was entitled to a judgment, citing the mandatory tenor of Ark.Stat.Ann. § 29-124 (Repl.1962).

This court's mandate was filed in Independence Circuit Court on April 9, 1963, and thereafter appellant tendered to appellee the sum of $9,637.55 with six percent interest on that sum from October 26, 1961. Appellee refused this tender, insisting that he is entitled to the $9,637.55 plus interest computed on the entire $20,000 original judgment. Appellee filed a motion for order nunc pro tunc, alleging that there was an ambiguity or a scrivener's error in the judgment affirmed by this court. At hearing on the motion on September 25, 1963, the trial court found and held:

'On or about 1/29/62 this court advised counsel by letter that the motion for judgment notwithstanding the verdict was being granted. This ruling announced by letter, was intended to mean just exactly what it said, 'that the motion was granted.' There was no limitation in the ruling, and the court has the very distinct recollection that it was the court's intention at that time that the interest be computed until paid on the amount of the Illinois judgment, which was $20,000.00. It was not until the filing of this motion for order and judgment nunc pro tunc on interest that the court became aware that counsel for the plaintiff had committed a scrivener's error in the precedent submitted to the court, and by doing so did not prepare a judgment which spoke the truth.

'Wherefore, the court orders that the judgment of 1/29/62 be corrected to speak the truth nunc pro tunc.

'Wherefore, it is considered, ordered and adjudged that interest be computed on $20,000.00 at the rate of 6% per annum from October 26, 1961, until date of tender of the correct amount of the judgment and interest, in addition to the other sums for which judgment was entered by the court on January 27, 1962, and that execution or other appropriate process may be issued therefor, and this judgment having been made on the 27th day of January, 1962, and it inadvertently omitted from the records, it is entered nunc pro tunc.'

From this order, appellant has prosecuted this appeal urging that the trial court erred in granting appellee's motion for order and judgment nunc pro tunc on interest.

There can be little doubt...