Monarch v. Brey

106 Ky. 688 | Ky. Ct. App. | 1899

JUDGE DuRELLE

delivered the opinion op the court.

Suit was brought in the circuit court by appellee against Thomas, Simmons, and appellant Monarch upon a promissory note, and process executed in time for a judgment at the October term, at which time the court directed judgment to be entered by default; but, the papers having been mislaid, the judgment was not entered. Subsequently, at the December term, a judgment was entered reciting that the defendants had been summoned to the October term, that judgment had been rendered against them, but not entered because the papers were mislaid, and that “this judgment is entered as of the first day of the October term, 1896, and execution may issue forthwith.” Execution accordingly issued, and was replevied by Thomas and Monarch, with S. Monarch as surety. At the June term, 1897, appellee gave notice of a motion to enter a judgment nunc pro iunc as of the first day of the October term, and the defendants gave notice and moved to set aside as void the judgment which had been entered, appellee’s motion being obviously intended to secure a judgment in the event the former judgment should be set aside as void. Both motions were overruled, and this appeal is prosecuted both from the judgment entered at the December term and the order overruling the motion to set aside.

Appellant contends that the judgment was void for several reasons:

First. Because it was rendered as of October 1st, at which time no court was in session. The record» before us shows it to have been rendered as of the first day of the October term, and the question must be decided by that record.

Second. Because, by rule of the Daviess Circuit Court, it was provided that certain terms of the court, including the December term, should be known as the criminal terms, “and no civil business, either common law or equity, will be prosecuted at said terms, unless in case of actual emergency,” etc. In the case of Paducah Land Coal & Iron Co. v. Cochran, Assignee, &c., 18 Ky. Law Rep., 465 [37 S. W., 67], it was held, with reference to this rule, that the judge could undoubtedly have set aside or suspended it, and that an order made in a civil suit at such criminal term was not error.

Third. That there was not sufficient evidence upon which to enter the judgment nunc pro tunc. The clerk’s minutes showed an entry as follows:

“Brey

12,135 vs. Judgt.

Thomas.”

—This entry gives the style of the case, the case number, and an abbreviation for “judgment,” is quite as full as such entries upon the minutes usually are, and we think sufficient upon which to base the entry of the judgment nunc pro tunc.

Fourth. It is further urged that the. court had no right to make the nunc' pro tunc order, and hear evidence authorizing it, without notice having first been given. The court might, having the jurisdiction both of defendants and the subject matter, have entered the judgment on the first day of the October term. And so it might have entered the judgment at the December term, in spite of the rule setting that term apart for criminal business, though such a judgment would doubtless have been set aside upon the defendant’s showing that, through surprise or for other reasons, it had operated to his prejudice. It might also have ordered immediate execution. This being so, it is difficult to see wherein appellant was prejudiced by the order entering the judgment as of the October term, especially as it is not pretended that he had any defense to the merits, and the fact of its rendition is shown by an entry in a record recognized by the statute (Ky. St., sec. 378), as part of the records of the court. The rule of court relied on was adopted by the court for 'the guidance of the clerk and as notice to litigants and counsel of what the court intended to do. If the court had power to make it, it had power to rescind it, and by entering the order did rescind it, if such entry was in violation of the terms of the rule, or must be supposed to have acted on an emergency within the terms of the rule.

It is claimed that this was the correction of a clerical misprision, and under section 519 of the Code, must be done upon notice to the adverse party. Section 517 of the Code provides that certain enumerated things shall be' deemed clerical misprisions, and there are others. It is conceded that the omission of a part of a judgment in entering it — the failure to allow interest or credits admitted, the allowance of too much interest, etc. — comes under this head; but we do not think the failure to enter a judgment directed by the court comes under this head, or requires notice to be given of a motion for its entry.

■Wherefore, the judgment is affirmed.