Wilmerding v. Corbin Banking Co.

• Decision Date: 30 May 1900
• Docket Number: 579.
• Citation: 28 So. 640,126 Ala. 268
• Parties: WILMERDING v. CORBIN BANKING CO. No. 578. SAME v. SAME.
• Court: Alabama Supreme Court

28 So. 640

126 Ala. 268

WILMERDING v. CORBIN BANKING CO.

No. 578.

SAME v. SAME.

No. 579.

Supreme Court of Alabama

May 30, 1900

Appeals from city court of Talladega; G. K. Miller, Judge.

Actions by the Corbin Banking Company against E. E. Wilmerding. From an order amending the judgments nunc pro tunc, and from an order refusing to vacate the judgments, defendant appeals. Reversed.

H. L McEldery and Whitson & Graham, for appellant.

Knox Bowie & Dixon and Borden H. Burr, for appellee.

No 578.

HARALSON J.

In September, 1895, the Corbin Banking Company, a nonresident of this state, sued out before the clerk of the city court of Talladega, under section 3923 of the Code of 1886, an attachment against Mrs. E. E. Wilmerding, the appellant another nonresident of the state, which was returned to said city court, and on the 13th November following, without appearance of or personal service on defendant, a personal judgment was rendered against her, on what purported to be a nonresident publication. This attachment was levied by the sheriff on certain lands lying in this state, alleged to belong to defendant. The judgment entry, after reciting the levy, proceeds, "And it being further shown to the court, that the order of publication heretofore made in this case, notifying and requiring the defendant to appear and plead to or demur to the plaintiff's complaint in this case, was duly published in the News Reporter, a newspaper published in Talladega county, Alabama, for four consecutive weeks, commencing on the 14th September, 1895, and that a copy of said publication was forwarded by mail to the place of residence of said defendant, and the said defendant being now called makes default: It is therefore considered by the court, on sworn proof submitted to the court, that the plaintiff have and recover of the defendant the sum of $187.65, the damages claimed in this complaint, as well as all the costs of this case, for which let execution issue." Then follows an order of condemnation and sale of the lands levied on, for the satisfaction of the judgment rendered, with direction to the clerk to issue to the sheriff a writ of venditioni exponas to sell all the right, title and interest of defendant in the said lands and apply the proceeds of sale to the satisfaction of the judgment for damages and costs.

This notice is not in accordance with the requirements of the statute in such cases (Code, § 531 [2936]), which requires the clerk, after the levy, to "cause a notice of the attachment and levy on the defendant's property to be advertised, once a week for three consecutive weeks, in some newspaper, a copy of which must be sent by mail to the defendant, if his residence is known or can be ascertained; and if such publication is perfected twenty days before the next term of the court, the case shall stand for trial at that term, otherwise at the succeeding term," etc. This notice as here recited, instead of following the statute, seems to have been an attempt to follow rule 22 (25) of chancery practice as to service on nonresidents.

At a regular term of the city court in September, 1899, the plaintiff in attachment moved the court to amend said judgment, nunc pro tunc, so as to make it recite that the Corbin Banking Company, the plaintiff in attachment, was a partnership, and to set out the names of the partners composing the firm; to make it further recite the notice of the attachment and levy given, according to the requirements of said section 531 (2936), and to correct said judgment, generally, from a personal judgment against the defendant, to one simply for condemnation and sale of the lands levied on to pay a debt of the defendant in attachment ascertained to be $187.65, and the costs of the proceeding.

The defendant in attachment, Mrs. Wilmerding, appeared specially by attorney for the purpose only of resisting this motion to amend said judgment, nunc pro tunc. The judgment on the trial of this motion, was amended as proposed, to which ruling the defendant excepted, as she did separately and severally to the introduction of evidence upon which the plaintiff sought to have said judgment corrected.

The object of a judgment nunc pro tunc is not the rendering of a new judgment and the ascertainment and determination of new rights, but is one placing in proper form on the record, the judgment that had been previously rendered, to make it speak the truth, so as to make it show what the judicial action really was, not to correct judicial errors, such as to render a judgment which the court ought to have rendered, in the place of the one it did erroneously render, nor to supply nonaction by the court, however erroneous the judgment may have been. Dumas v. Hunter, 30 Ala. 188; Browder v. Faulkner, 82 Ala. 257, 3 So. 30; Robertson v. King, 120 Ala. 459, 24 So. 929. "The power to amend nunc pro tunc is not revisory in its nature, and is not intended to correct judicial errors. Such amendments 'ought never to be the means of modifying or enlarging the judgment, or the judgment record, so that it shall express something which the court did not pronounce, even although the proposed amendment embraces matter which ought clearly to have been pronounced.' However erroneous, the express judgment of the court cannot be corrected at a subsequent term." Browder v. Faulkner, supra; Brown v. Barnes, 93 Ala. 58, 9 So. 455; 1 Freem. Judgm. §§ 71, 72.

In this case a personal judgment by default was rendered against the defendant, as distinct as one could have been rendered against her in a suit on a promissory note on personal service. Any effort to make it appear, that the court did not intend to pronounce this judgment is, necessarily, futile. There is no rule of law to justify or authorize an appellate court to hold that a lower court did not intend to do what its solemn adjudication in plain terms says it did do. But the rule of construction is exactly the contrary,-to presume the court intended to do what its order plainly declares it did do. The proceeding to correct this judgment, if sanctioned, would be to allow the court below to revise its own judgment, to modify it so as to make it express something which the court did not pronounce, and, really, to expunge from the record a judgment it did render, which was erroneous, and substitute therefor another and very different judgment. The scope and extent of the statute of amendment of judgments is to "amend any clerical error, mistake in the calculation of interest, or other mistake of the clerk, when there is sufficient matter apparent on the record or entries of the court to amend by." Code, §§ 3334, 3337; Tippins v. Peters, 103 Ala. 196, 15 So. 564; Brown v. Barnes, supra.

We need not notice the other grounds urged against the amendment of this judgment. Whether they are well taken or not cannot affect the result, since the judgment as rendered is one, as we have seen, incapable of amendment nunc pro tunc, in the manner proposed, without reference to these other objections.

The judgment of the lower court will be reversed and one will be here rendered dismissing said motion out of this court and the court below, at the cost of the appellee.

Reversed and rendered.

No. 579.

In this case between the same parties, relating to the same judgment, the defendant moved the court to set aside and annul the judgment rendered on grounds set out in the motion therefor. Attached to her motion, and as part thereof, she exhibited the affidavit for attachment, bond, writ, complaint and judgment rendered in the cause. The grounds on which she based her motion, amongst others, were, that said judgment is a nullity, being void on its face; because she had no notice of the issuance and levy of said attachment; that the attachment was issued in a partnership name, without setting out the individual names of the partners, as they are set out in the attachment bond, and because the court had no jurisdiction of the subject-matter or parties, or either of them, in said cause.

During the pendency of this motion, and before it was heard, the plaintiff moved the court, to amend said original judgment in the cause, nunc pro tunc, in a manner, if proper to be allowed, and if allowed, to cure the defects in said original judgment, which motion was first entertained by the court and...