Ory-Cohen v. Taylor, 94 So. 525

Ory-Cohen v. Taylor

94 So. 525 | Ala. | 1922

Lead Opinion

The suit was against an individual and as member of a partnership. There is no bill of exceptions. Diminution of the record being suggested in the Court of Appeals, the judgment corrected nunc pro tunc in the trial court and sent to this court in response to writ of certiorari discloses that the judgment was against A.D. Cohen only, "individually and as a partner of the firm of Ory-Cohen, composed of S.E. Ory *521 and A.D. Cohen, defendant, September 29, 1921." This was not a judgment against the partnership of Ory-Cohen. Code, § 2506; Wahouma Drug Co. v. Clay, 193 Ala. 79, 69 So. 82. Nor was that partnership made a party defendant to the suit so far as the return to writ of certiorari discloses.

Aside from the amendment of the judgment nunc pro tunc, the record discloses that the partnership of Ory-Cohen was not a party defendant to the suit — the summons and complaint made as "defendant" A.D. Cohen individually and as surviving partner of the firm of Ory-Cohen, formerly a partnership composed of N.E. Ory and A.D. Cohen. The amendment to the complaint strikes out the word "surviving" so that the suit proceeded against the "defendant individually and as partner of the firm of Ory-Cohen, composed of S.E. Ory and A.D. Cohen." Defendant's pleas were styled "Gussie Taylor, Plaintiff, v. A. D. Cohen, individually and as surviving partner, etc., Defendant. The defendant, for answer to the plaintiff's complaint, and each count thereof, says," etc. The error of the clerk in inserting in the caption of the judgment of date September 29, 1921, "Gussie Taylor v. A.D. Cohen, individually, and Ory-Cohen, a partnership," did not make the partnership a party to the suit and a defendant in judgment.

In Patterson v. Burnett, 6 Ala. 844, the observation is contained that the recital of the clerk at the head of the judgment entry is merely for the purpose of identifying the cause to which the judgment relates, and if he makes a mistake in the name of one of the parties, it is merely a clerical misprision, which is amended, or may be, by other parts of the record. Smith v. Redus, 9 Ala. 99, 101, 44 Am. Dec. 429; Kennedy v. Young, 25 Ala. 563; Lamkin v. Dudley, 34 Ala. 116; Floyd v. Lamar, 13 Ala. App. 504, 69 So. 227. In Clinton Mining Co. v. Bradford, 200 Ala. 308, 312, 76 So. 74, 78, it was declared that, "We are not without decisions to the effect that such clerical errors * * * may be corrected by the context" — as a judgment has been referred to the complaint (Kyle v. Caravello, 103 Ala. 150, 15 So. 527), and the caption of a judgment entry to have corrected another part of the record. Smith v. Branch Bank, 5 Ala. 26.

The correction by the lower court of its own judgment on motion nunc pro tunc makes it a liability only against A.D. Cohen, and dates back to the rendition of the original judgment, and presents in this court no reversible error of which appellant may complain. The judgment as amended nunc pro tunc is properly before this court. Cunningham v. Fontaine,25 Ala. 644, 648; City of Huntsville v. Goodenrath, 13 Ala. App. 579,584, 68 So. 676; Ware v. Brewer, 34 Ala. 114; Seymour Sons v. Thomas Harrow Co., 81 Ala. 250, 1 So. 45; Ex parte Henderson, 84 Ala. 36, 4 So. 284. In 10 A.L.R. 526, 527, are all the authorities, state and federal, collected to support the text that, in a vast number of pertinent cases it has been held or recognized that every court of record has control over its own judgments, records, decrees, and orders, and power as well after a term has ended as while it lasts to correct apparent or proved clerical mistakes and misprisions in them, and to cause them to speak the truth. This is the rule in this state, beginning with the case of Wilkerson v. Goldthwaite (1831) 1 Stew. Port. 159, to A. G. Story Mercantile Co. v. McClellan (1906) 145 Ala. 629, 40 So. 123; Huntsville v. Gudenrath (1915) 194 Ala. 568, 69 So. 629.

Neither will the court review the action of trial court in amending the judgment nunc pro tunc in the absence of a bill of exceptions showing that exception was reserved to such action. Turk v. Smith Co., 2 Port. 155; Leinkauff v. Tuskaloosa, etc., Co., 105 Ala. 328, 16 So. 891; Basenberg v. Lawrence,160 Ala. 422, 49 So. 771.

As stated, the judgment against A.D. Cohen as amended nunc pro tunc was not against the partnership of Ory-Cohen, and is affirmed as against A.D. Cohen. However, when the appeal was taken by the partnership the same was so entered by the clerk, and as corrected by the motion nunc pro tunc the partnership was eliminated, and as corrected is affirmed. The costs of the appeal will be equally borne by the appellant, A.D. Cohen, and appellee, Gussie Taylor.

Affirmed.

ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.

On Rehearing.

Addendum

The appeal is taken when claimed, and security for costs filed with the proper officer (Kimbrell v. Rogers, 90 Ala. 339,343, 7 So. 241; Jacobs v. Goodwater Graphite Co., 205 Ala. 112,87 So. 363; Moore v. Spier, 80 Ala. 129, 133), without regard to issue of citation. Acts 1915, p. 711. The "giving of the security for the costs of the appeal to be approved by the clerk or register of court" when approved, as the bond in the instant appeal was, on "March 4, 1921, by J. L. Draper, Clerk," perfected the appeal as to A.D. Cohen pursuant to the terms of that bond, irrespective of the fact that said Cohen failed to execute the same as an individual, and only affixed thereto the name of the partnership Ory-Cohen. 2 R. C. L. § 90, p. 114. As stated, the only condition precedent "to the taking of an appeal" was "the filing with the clerk within the time required by law, a sufficient undertaking to secure costs." Where this was done, the right was fully perfected within *522 the time and manner provided by statute. Kimbrell v. Rogers, supra; Acts 1915, p. 711.

The rehearing is denied.

ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.