St. Louis & N. A. R. Co. v. Bratton

• Decision Date: 17 January 1910
• Citation: 124 S.W. 752
• Parties: ST. LOUIS & N. A. R. CO. v. BRATTON.
• Court: Arkansas Supreme Court

124 S.W. 752

ST. LOUIS & N. A. R. CO. v. BRATTON.

Supreme Court of Arkansas.

January 17, 1910.

Appeal from Circuit Court, Searcy County; Brice B. Hudgins, Judge.

Action by Benjamin Bratton, administrator of Benjamin Bratton, Sr., against the St. Louis & North Arkansas Railroad Company. Judgment for plaintiff amending a former judgment nunc pro tunc, and defendant appeals. Reversed and remanded, with directions.

W. B. Smith and J. Merrick Moore, for appellant. U. S. Bratton, for appellee.

FRAUENTHAL, J.

This is an appeal from a judgment of the Searcy circuit court correcting or amending by a nunc pro tunc order a former judgment of that court entered at a former term. At the February, 1909, term of the Searcy circuit court the plaintiff below, Benjamin Bratton, administrator, filed this motion for a nunc pro tunc order, in which he stated that on January 10, 1906, he filed a complaint against the defendant to recover damages for the wrongful killing of one Benjamin Bratton, Sr., and that on March 16, 1907, said cause was tried in said court, and a verdict returned by a jury in favor of the plaintiff for $2,500, that a judgment was entered upon said verdict at that term of said court, but that by oversight it failed to mention the lien which goes with such a judgment. He asked that the judgment as entered at said former term of the court "be corrected by a nunc pro tunc order so as to mention the fact that a lien goes with the judgment as against the property of the defendant, which it owned at the time the cause of action accrued." Upon the trial of the original action the jury returned the following verdict: "We, the jury, find for the plaintiff, Benjamin Bratton, administrator of the estate of Benjamin Bratton, Sr., deceased, the sum of $2,500" — and the following judgment was entered thereon: "It is therefore considered, ordered, and adjudged by the court that the plaintiff, Benj. Bratton, Jr., as the administrator of the estate of Benj. Bratton, Sr., deceased, have and recover of and from said defendant said sum of $2,500, and all his costs in this suit laid out and expended, and in default of payment let execution go therefor." The motion for the nunc pro tunc order was submitted to the court upon an agreed statement of facts. This statement includes the complaint and answer in the original suit, the verdict of the jury upon the trial of the action, and the former judgment entered therein, and also the following: "(2) That from the record of the case it does not appear that the plaintiff made any request to have granted it the lien mentioned in sections 6661 and 6663 of Kirby's Digest. (3) It is further agreed that the judge of the circuit court, in accordance with his custom, left the form of the judgment to be drawn by the clerk of the court, intending that said judgment would be drawn to conform with the law and the facts, that his attention was never called to the lien mentioned in the above sections of Kirby's Digest, and that his mind never passed upon it." The circuit court granted said motion, and entered in full a judgment nunc pro tunc, in which it stated in substance that "the judgment, being a lien" on the property of the defendant which belonged to it at the time the cause of action upon which the verdict was rendered, accrued. From this judgment thus correcting or amending the judgment entered at the former term of the Searcy circuit court, the defendant prosecutes this appeal.

The plaintiff bases his right to the above lien by virtue of section 6661, Kirby's Dig., which in substance provides that every person who shall sustain loss or damage to person or property from any railroad, for which a liability may exist at law, shall have a lien for said damage on said railroad and its property. And he contends that he is entitled to have said lien mentioned as a matter of right and of course in the judgment for the recovery of the damages, by virtue of section 6663, Kirby's Dig., which provides that: "Said lien shall be mentioned in the judgment rendered for the claimant in the ordinary suit for the claim * * * and may be enforced by ordinary levy and sale under final or other process of law or equity." The plaintiff urges that he is entitled to have the former judgment of the court which failed to mention said lien amended in that regard, either because of the clerical misprision of the clerk in entering the judgment, or because the mention of the lien is necessarily and properly a part of the judgment, by reason of the fact that he was entitled to it as a matter of course. The question that is thus presented for determination by this appeal is in what regard and to what extent can a court amend or correct its judgment after the expiration of the term at which the judgment was rendered and entered. In order to give to the record of a court the utmost sanctity and an absolute verity the common law declared that no judgment could be amended...