Stevens Expert Cleaners & Dyers, Inc. v. Stevens

• Decision Date: 19 January 1954
• Docket Number: No. 35562,35562
• Citation: 267 P.2d 998
• Parties: STEVENS EXPERT CLEANERS & DYERS, Inc. v. STEVENS.
• Court: Oklahoma Supreme Court

Page 998

267 P.2d 998

1954 OK 17

STEVENS EXPERT CLEANERS & DYERS, Inc. v. STEVENS.

No. 35562.

Supreme Court of Oklahoma.

Jan. 19, 1954.

Rehearing Denied March 9, 1954.

Application for Leave to File Second Petition for Rehearing

Denied March 23, 1954.

Syllabus by the Court.

While a trial court, by order nunc pro tunc, may correct the record of a judgment theretofore rendered in order that such record shall truly reflect such judgment, it may not by such order render another and different judgment, nor adjudicate property rights which were not determined in the judgment.

John F. Eberle, Richard J. Spooner, Oklahoma City, for plaintiff in error.

McKinney & McKinney, Oklahoma City, for defendant in error.

DAVISON, Justice.

This is an appeal from the granting and entering of an order nunc pro tunc upon application of the original defendant, in a suit brought by Stevens Expert Cleaners and Dyers, Inc., as plaintiff, against E. O. Stevens, as defendant. The parties will be referred to as they appeared in the trial court.

By its petition, plaintiff sought a permanent injunction against the defendant. On June 9, 1950, after a full and complete hearing and trial of the issues, the trial court rendered judgment for plaintiff. The parties were unable to agree on a journal entry of said judgment and each prepared, presented and extensively argued a suggested one. The trial court, on October 28, 1950, made and entered, as a judgment, the journal entry submitted by the attorney for defendant, which except for formal parts, is as follows:

'This cause coming on for hearing the 9th day of June, 1950, before Honorable W. A. Carlile, Judge of the District Court in and for Oklahoma County, State of Oklahoma, and plaintiff being present by John E. Eberle, Attorney, and the defendant by Harry Priest, Attorney, the court proceeded to hear evidence and argument in this cause and the court having carefully considered and weighed the evidence adduced and the argument and being fully advised in the premises, finds and adjudges that the plaintiff is entitled to the relief prayed for; and,

'It is, Therefore, Ordered and Adjudged, that the plaintiff is granted a permanent and perpetual injunction against the said defendant, and the said defendant, his servants, agents and employees and all persons acting in combination and concert with said defendant, are hereby forever restrained and barred from the use of the name 'Stevens' in soliciting business for or in advertising the cleaning business being operated at 5401 North Western Avenue, Oklahoma City, Oklahoma, or any other cleaning and dyeing businesses now or hereafter operated by the said defendant, and that the defendant is particularly restrained from placing the name of 'Stevens,' 'E. O. Stevens,' or 'Stevens and Son' on and about his said place of business or upon the show windows thereof in such place or manner that same is by reason thereof used to advertise the operation of a cleaning business and from in any manner misleading the public into believing that the plaintiff, the Stevens Expert Cleaners and Dyers, Inc., has taken up its location at 5401 North Western Avenue or that the cleaning business at the said last named address has any connection or succession to the said Stevens Expert Cleaners and Dyers, Incorporated.

'That the said defendant and all acting by, with the under him, or in combination and concert with him are further perpetually enjoined and restrained, for the purpose of securing business, from using the said names of 'Stevens,' 'E. O. Stevens,' or 'Stevens and Son,' or any other use of the name of 'Stevens' in connection with the cleaning and dyeing business in listings, directories, telephone directories, or in advertising in any manner and from in any manner using the words 'Stevens' 'E. O. Stevens', or 'Stevens and Son,' or from otherwise using the name 'Stevens' in conjunction with the words 'cleaners and/or dyers' or any similar designation of the said word of 'Stevens' in connection with any designation of the said word of the cleaning business, whether upon signs, placards, handbills, advertisements, listings, or representations in any manner whatsoever for the purpose of securing business.

'That said injunction shall include not only the said E. O. Stevens, defendant herein, but all persons acting as his servants, agents, and employees, and all persons acting in combination and in concert with the said defendant.

'It is further ordered that the defendant pay the costs of this action.

'And the defendant having duly filed his Motion for New Trial herein which was overruled by the court on June 16, 1950, and an exception given to the defendant, said defendant thereupon gave notice in open court of his intention to appeal to the Supreme Court of the State of Oklahoma, and the Court thereupon granted the defendant thirty (30) days addition to the regular time for making and serving case-made, the plaintiff being given three (3) days to suggest amendments and the same to be settled on three (3) days' notice, and appeal bond being fixed in the amount of Two Hundred and Fifty ($250.00) Dollars.

'Dated this 9th day of June, 1950.'

Several steps were taken in proceedings to appeal therefrom but the appeal was not perfected and the judgment became final. Thereafter, defendant employed a different attorney, who filed, on May 1, 1951, an 'Application for Order Nunc Pro Tunc and Motion to Modify.' That motion was amended and, on January 28, 1952, after application for, and denial of, a writ of prohibition from this court, the trial court made an 'Order Nunc Pro Tunc,' the material portion of which is as follows:

'It is therefore, ordered, adjudged and decreed that the Journal Entry dated the 9th day of June, 1950, be corrected as follows:

'At the end of the second paragraph, on page 2 of the Journal Entry, right after the word, 'Business,' this sentence:

'Provided that nothing herein shall preclude the defendant, E. O. Stevens, from stating under the name Whitehouse Cleaners and Dyers that he E. O. Stevens, or E. O. Stevens and Son, are the owners of said business; but in no case shall he state by advertisement or otherwise, that he is the same E. O. Stevens who was formerly connected with the Stevens Expert Cleaners and Dyers.'

From that order, this appeal has been perfected. The defendant, to support the action of the trial court in the rendition of the order nunc pro tunc, has devoted much of his argument to the merits of the original case. There is no rule of procedure which permits such review in this appeal. The only issue properly before this court is whether or not the trial court had authority to enter, nunc pro tunc, on January 28, 1952, an amended and modified judgment supplementing and changing the judgment of June 9, 1950, from which no appeal was taken. That judgment whether proper or not became final. The term of court at which it was rendered has long since expired. If the journal entry (filed October 28, 1950) did not reflect the details of the judgment as rendered, it could be amended nunc pro tunc at any subsequent term, and, as so corrected, it then was final as of the original date of rendition of the judgment. If the journal entry reflected the actual judgment rendered (with or without correction nunc pro tunc) it makes no difference at this late date how erroneous that judgment was. It could be vacated, modified, or changed only in the manner provided by statute, 12 O.S.1951 § 1031 et seq.

Therefore, we cannot be here concerned with what judgment in the case would have been proper. The only question we now have jurisdiction to determine is as to what judgment the trial court actually rendered. To hold otherwise would be, in effect, saying to all litigants--Although you have allowed years to elapse since judgment was rendered against you from which you did not appeal, we will allow you to present your case here as on appeal, provided the trial court will render a judgment nunc pro tunc. That is not the law in any jurisdiction. A judgment of a...