134 S.W.2d 598 | Ky. Ct. App. | 1939
Affirming.
These two appeals have been consolidated and will be disposed of in one opinion.
Joseph Lusk and others brought an action in the Perry circuit court November 12, 1934, to cancel a coal lease dated October 12, 1933. The case was tried before Hon. O.H. Pollard, special judge, and on October 2, 1935, judgment was rendered in favor of the plaintiffs. Gorman appealed, and the judgment was affirmed May 25, 1937, and a petition for rehearing was overruled November 23, 1937. Gorman v. Lusk et al.,
If the order entering nunc pro tunc the judgment rendered by Hon. O.H. Pollard, special judge, on October 2, 1935, is correct, then it follows that the judgment dismissing the petition in the action to set aside the judgment of October 2, 1935, and hold it null and void is also correct. It is essential to the validity of a judgment that it shall be entered upon the order book provided for the purpose and signed by the presiding judge or his successor. Clark v. Mason,
"The records show what the court did. It rendered a judgment in favor of Hoffman and against Shuey, and the only attack that is made upon its validity is directed to the failure of the judge to sign it. One *696 of the maxims of the law that has come down to us from hoary antiquity is, 'Actus curiæ neminem gravabit' — an act of the court shall prejudice no man. Applying that maxim to the case before us, it follows that Hoffman should not be prejudiced by the failure of the judge of the Campbell quarterly court to sign this judgment when it was rendered in 1917, and since he has, after proper notice to Shuey, made a motion to have the present judge of the Campbell quarterly court sign this judgment, and the present judge of the Campbell quarterly court has signed the judgment and directed that it be treated and considered for all purposes as between the parties as having been signed on September 5, 1917, it became, after it was signed, a valid judgment effective from the date that it was rendered, and not the date that it was signed, and all acts, steps, and processes taken, done, and issued under and in an effort to enforce it were likewise validated."
It follows from what has been said that the entry of the judgment nunc pro tunc was proper and that all proceedings subsequent to the rendition of the judgment on October 2, 1935, were thereby validated.
The judgment in each case is affirmed.
Whole Court sitting.