State v. F. B. Williams Cypress Co., Limited

• Decision Date: 14 April 1913
• Docket Number: 19,212
• Citation: 132 La. 949,61 So. 988
• Court: Louisiana Supreme Court
• Parties: STATE v. F. B. WILLIAMS CYPRESS CO., Limited

61 So. 988

132 La. 949

STATE v. F. B. WILLIAMS CYPRESS CO., Limited

No. 19,212

Supreme Court of Louisiana

April 14, 1913

Rehearing Denied May 12, 1913

SYLLABUS

(Syllabus by the Court.)

The facts that 2+2=4, and that a smaller number, subtracted from a larger one, leaves a certain, immutable remainder, the amount of which may be ascertained by the use of a mechanical device, are established, leaving no room for the exercise of any judicial function. When, therefore, this court reached the conclusion that plaintiff was entitled to recover from defendant the difference between one stated sum and another the ascertainment of the amount of that difference was mere clerical work, and an error committed in the performance of clerical work, whether by the court or the clerk, is a clerical error.

This court has jurisdiction, for the purpose of correcting a clerical error which forms the basis of its judgment, as shown by the opinion, to amend such judgment, though the delay allowed for an application for rehearing and for the consideration of such application has elapsed, and though the motion be made at a term subsequent to that at which the judgment was rendered; the judgment not having been sent to the district court for execution.

Beattie & Beattie, of Thibodaux, for appellant.

Samuel A. Leblanc, of Napoleonville, for the State.

On Application to Amend the Judgment.

BREAUX C. J., dissents.

OPINION

MONROE, J.

In the opinion heretofore handed down, the court reaches the conclusion that plaintiff, as owner of the timber unlawfully converted by defendant, is entitled to the profit resulting from the change made in the form or condition of the property, and that defendant, as a possessor in legal bad faith, cannot reasonably expect anything more than reimbursement of the expense incurred in making the change; or in other words, that plaintiff is entitled to recover the value of its timber, as converted and manufactured by defendant, less the cost of logging and manufacturing the same; and the concluding paragraph in the statement of the case, which was carried into the judgment, gives that value and cost and arrives at the amount to be awarded plaintiff by subtracting the one from the other, as follows, to wit:

Total value of 6,000,000 feet manufactured

into cross-ties and lumber, as heretofore

stated

$ 109,400 00

Total cost of logging and manufacture at

$ 12.00 per M.

72,000 00

Balance of profit

$ 28,400 00

But the 'balance of profit,' as ascertained by deducting $ 72,000 from $ 109,400 is $ 37, 400, and not $ 28,400, from which it follows that the judgment gives plaintiff $ 9,000 less than it is entitled to, and less than upon the face of the opinion, it was the intention of the court to award.

The opinion was handed down on May 16, 1912, and defendant applied for a rehearing, which was refused, on June 19th following. Defendant then obtained a writ of error, whereby the case was taken to the Supreme Court of the United States, where the writ was dismissed 'for the want of jurisdiction,' and there was judgment decreeding 'that said plaintiff recover against the said defendant, F. B. Williams Cypress Company, Limited, $ 280.50 for its costs herein expended, and have execution therefor.' The counsel who represented plaintiff was elected judge of the district court about the time or shortly before this court rendered its judgment, and his attention being, perhaps, somewhat distracted, he did not immediately detect the error which had been committed, and thereafter, in view of his election to the judgeship, other counsel were employed, by whom, on December 18th, an 'application and motion' was filed in this court, in which, after reciting the error in question, it is alleged that the same is a clerical or mathematical error; that the decree or mandate in the case has never left this court, but is still under its control, action in the matter having been suspended by the writ of error, operating as a supersedeas, to the Supreme Court of the United States; that said writ was dismissed on December 9th and would shortly reach this court; and that, before sending its judgment to the district court for execution, this court should correct said error so as to make the judgment conform to the court's expressed intention.

Wherefore mover prayed that the judgment be amended and the amount awarded plaintiff correctly stated at $ 37,400. A copy of the motion was mailed by plaintiff's counsel, on the day of its filing in this court, to the counsel of record representing defendant, by whom it appears to have been duly received; and another copy was so mailed by the clerk of this court, together with a communication to the effect that the court desired to know defendant's views in regard thereto. On January 27, 1913, counsel for plaintiff filed a further pleading to which was annexed a copy of the mandate of the Supreme Court of the United States, and asked that there be included in the amended decree, previously prayed for, the sum of $ 280.50, for which defendant was condemned by that tribunal. On February 7th following defendant came into court, through its said counsel of record, and objected to the manner of the notice, setting up that a judgment predicated thereon would be a taking of its property without due process of law, etc., and upon the same day reserving its rights, filed an answer, alleging that after the refusal of this court to grant the rehearing for which it had applied, and after the expiration of the term at which it was rendered, the judgment in question became final and passed beyond the court's jurisdiction; that the alleged clerical error occurred, not in the judgment, but in the reasons for judgment; and that to grant the motion would be to deprive defendant of its property without due process of law, abridge its privileges and immunities as a citizen of the United States, and deny it the equal protection of the laws, etc.

Our law prescribes no particular form or manner of notice in a case of this kind, and our jurisprudence furnishes no precedent. Defendant, as a matter of fact, received ample notice and has appeared and answered, through its counsel, who have supplied us with an able and exhaustive brief upon the merits of the motion.

The question, then, is, Can the error complained of be corrected in the present condition of the case?

Defendant cites articles 547, 548, and 609 of the Code of Practice as controlling authority, but those articles are found in part 11, under title 1, of that Code, the rubric and first article (article 124) of which read:

'Proceedings to be observed in the prosecution of actions before courts of original jurisdiction.

'Art. 124. The rules of proceeding, contained in the present title, relate only to the district and parish courts of the state, when in the exercise of their ordinary jurisdiction. Special rules are hereafter established for courts of probate and justices of the peace.'

And special rules are also thereafter established under title 2, and the rubric, 'Of proceedings in the Supreme Court of the state,' for the regulation of the proceedings in this court. As to the district courts (those in the parish of Orleans excepted), the Constitution (article 117) provides that they 'shall hold continuous sessions during ten months of the year,' and the statutory law (Act 40 of 1904) applying to all the district courts provides that:

'All judgments rendered * * * [meaning definitive judgments] shall be signed within three days from the date of the rendition * * *: Provided that within such delay an application for new trial may be filed, and the granting of a new trial shall have the effect of setting aside the judgment signed within said three days: Provided, that judgment in confession may be signed at any time in open court.'

Article 547 of the Code of Practice (applying to all district courts) provides that:

'Judgments may be amended by the court, until after having been signed in order: (1) To alter the phraseology of the judgment, but not its substance; (2) to correct errors of calculation, as for instance, if more have been given than was demanded, or if the party in favor of whom the judgment was given had been ordered to pay the costs. Except in the cases above provided, courts can not alter their judgments; but they may ex officio, direct a new trial in order to revise their judgments.

'Art. 548. A judgment, when once rendered, becomes the property of him in whose favor it has been given; and the judge can not alter the same, except in the mode provided by law.

'Art. 609. The nullity [of a judgment appealed from] can be demanded on the appeal, only while the appeal is still pending and when the nullity is apparent on the face of the records.'

The final judgments of the district courts may, however, be reviewed in either of three ways, to wit: By appeal, certiorari, or action of nullity. On the other hand, the law governing the practice in this court does not require its judgments to be signed, and makes no provision for the correction of errors of any kind in such judgments after they have become 'final,' which happens upon the expiration of the delay within which a rehearing may be applied for; but it contains no such stringent prohibitions against the correction of such errors as are applied by article 547 of the Code of Practice to the district courts.

The provisions of the Code of Practice and other statute law pertinent to the present inquiry are as follows:

'Art. 910. All the judgments or orders rendered by the Supreme Court shall be recorded at length by the clerk, in records kept for that purpose.'

Act No. 18 of 1879 amending and re-enacting:

'Art 911. The judgments rendered by the Supreme Court at New...