Tommy G. PIRTLE, Appellant, v. Shirley A. (Pirtle) COOK, Respondent.
No. 79785.
Supreme Court of Missouri, En Banc.
Nov. 25, 1997.
Rehearing Denied Dec. 23, 1997.
235
Leo Chestnut, Springfield, for Respondent.
COVINGTON, Judge.
The marriage of Shirley A. Pirtle (Wife) and Tommy G. Pirtle (Husband) was dis-
I.
Husband petitioned for a dissolution of marriage from Wife by a petition filed November 30, 1982. Trial was scheduled for September 10, 1984. On that date, the trial judge made the following docket entry:
Petr appears in person and by atty Harpool. Resp appears in person and by atty Elsey. Evidence heard, petition proven. Property settlement received and approved. Dissolution of marriage ordered per decree filed.
Also on September 10, the trial judge signed and entered a decree of dissolution of marriage. In several places in the decree, the words “Petitioner” and “Respondent” are transposed.
On September 24, 1984, the trial judge made the following docket entry:
Court is advised of typing error contained in Decree entered 9-10-84 and does enter Amended Decree of Dissolution reflecting correction of same. Copies of amended Decree forwarded to attys Elsey and Harpool.
The “amended decree” was signed and entered on September 26, 1984. The terms “Petitioner” and “Respondent” are used correctly in the amended decree.
The property settlement agreement to which the docket entry of September 10, 1984, referred is incorporated into the dissolution decree. It contains the following provisions:
3. It is mutually agreed that the parties are joint owners of real estate located at Fordland, Missouri, consisting of a farm with 106 acres and 100 acres, and more particularly described on Exhibit A attached hereto. This property is subject to a first deed of trust in favor of Empire Bank with a balance of $90,699.35 plus $11,090.26 interest (which accrues at the rate of $33.55 per day), and which property has a value of approximately $173,000.00. It is mutually agreed that the real estate shall be sold, and the proceeds, after cost of sale and payment of the indebtedness to Empire Bank, shall be divided between the parties, with wife to receive 65% of the net proceeds and Husband to receive 35% of the net proceeds.
4. As a division of the martial property, it is agreed and understood that wife shall receive from Husband the minimum sum of $40,000.00. However, such sum shall be paid from the proceeds of the sale of real estate above set out, but should such sale proceeds be insufficient to pay said sum of $40,000.00, then Husband shall make up the difference out of other assets owned by Husband. It is also understood that should the 65% of net proceeds from the sale of all the real estate exceed the sum of $40,000.00, that Wife shall receive any additional sum as her separate property that would result in a net to her of 65% of such sale net proceeds. Husband shall receive 35% of the net proceeds of such sale. It is further agreed that such sum agreed upon to be owed to wife shall be non-dischargeable in bankruptcy. Parties agree to confer with tax consultants prior to closing date of sales, so so that each party will be able to have maximum benefits for tax purposes. It is further agreed that wife shall continue to live in the property rent free, until sale, but should she desire to remove herself therefrom, then Husband may move into the house and occupy it rent free until sale.
5. It is further agreed that the real estate shall be listed for sale immediately by the parties, and that the listing price on each farm shall be determined by the parties, but that the parties have agreed that a sale offer of $85,000.00 or above shall be acceptable to both parties, as to the 100 acres, and the price of $88,000.00 or above on the 106 acres.
The marital real estate did not sell, and the lender foreclosed on February 8, 1985. The parties received no proceeds from the foreclosure sale. Husband did not pay Wife the $40,000 specified in the decree.
In October of 1990, the parties commenced litigating various issues concerning the decree and property settlement agreement. During the course of the litigation, Husband filed a motion to modify seeking to terminate his obligation to pay periodic maintenance. On August 19, 1991, Wife filed a pleading styled “Motion to Enforce Judgment.” Husband filed an answer to the motion to enforce raising affirmative defenses. The motion to enforce judgment was never heard by the trial court.
On September 22, 1994, Wife filed a “Motion to Revive Judgment and Request for Declaratory Judgment” in which she sought revival of the September 1984 judgment ordering Husband to pay her $40,000. The trial court entered an order to show cause. Husband filed a response to the motion to revive in which he reasserted his prior affirmative defenses. In addition, he asserted that he had not been properly served with the motion to revive and that more than ten years had passed since the date of the original dissolution decree. The trial court heard evidence on the motion to revive judgment, request for declaratory judgment, and motion to modify. The trial court then entered a judgment interpreting the property settlement agreement, reviving Wife‘s judgment, and denying Husband‘s motion to modify.
II.
Husband contends that the trial court erred in reviving Wife‘s judgment. Husband asserts that
Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, except for any judgment, order, or decree awarding child support or maintenance which mandates the making of payments over a period of time, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatsoever.
Because Wife‘s motion to revive was filed on September 22, 1994, the first question is whether the “original rendition” of the judgment in this case is the decree of dissolution entered on September 10, 1984, or the amended decree entered on September 26, 1984. If September 10 is the date of the
When the September 10, 1984, decree was entered, it constituted the original rendition of the judgment. The docket entry shows that the trial court received the property settlement, approved it, and ordered the dissolution of the parties’ marriage on September 10. On that day, the trial court also signed and entered the dissolution decree, which included Husband‘s obligation to pay Wife $40,000. Consequently, September 10 became the date of the original rendition of the judgment when the September 10 decree was entered. See Wormington v. City of Monett, 358 Mo. 1044, 1050, 218 S.W.2d 586, 589 (banc 1949).
The issue is whether the September 26 decree replaced the September 10 decree as the original rendition of the judgment. This, in turn, depends upon whether the September 26 decree is an order nunc pro tunc or an amended judgment entered pursuant to
To determine whether the September 26 decree is a nunc pro tunc order or a
At common law, trial courts sat in terms. See 3 W. Blackstone, Commentaries * 407. The trial court was not considered to have spoken until the end of the term when the final judgment of the court was announced. During the term of the court, each cause was considered to be in the breast of the court. Wooten v. Friedberg, 355 Mo. 756, 763, 198 S.W.2d 1, 5 (1946). Consequently, the court had plenary power over a cause during its term. Aull v. St. Louis Trust Co., 149 Mo. 1, 14, 50 S.W. 289, 292 (1899).
Because the trial court had plenary jurisdiction over the cause during its term, it could open, modify, or vacate its judgment during the term. Id. The court‘s judgment is a judicial act, the exercise of judicial power, that finally determines the rights of the parties. See Kansas City v. Woerishoeffer, 249 Mo. 1, 26, 155 S.W. 779, 784 (banc 1912); McMillan v. Wells, 924 S.W.2d 33, 35 (Mo. App.1996); State v. Nesler, 922 S.W.2d 459, 461 (Mo.App.1996); In re Marriage of Wilfong, 658 S.W.2d 45, 47 (Mo.App.1983). The court‘s jurisdiction over its cause, therefore, allowed the court to alter the judicial determination of the parties’ rights.
The court‘s power to alter the parties’ rights during its term has always been accepted in Missouri. As this Court stated in 1887, “That a court of general jurisdiction, proceeding according to the course of the common law, has unlimited power during the whole of the term over its judgments rendered at such term is a rule of universal application. Until the end of the term its judgments are in the breast of the court, and may be modified, vacated, or set aside, as justice demands, becoming absolute only upon the adjournment of the court for that term....” Rottmann v. Schmucker, 94 Mo. 139, 144, 7 S.W. 117, 119 (1888) (citations omitted).
Nunc pro tunc orders have a different history. The power to enter a nunc pro tunc order is a common law power derived from a court‘s jurisdiction over its records. 3 W. Blackstone, Commentaries * 407. A court is considered to have continuing jurisdiction over its records. This jurisdiction exists independently from the court‘s jurisdiction over its cause or its judgment. In DeKalb County v. Hixon, 44 Mo. 341 (1869), this Court discussed the jurisdictional basis for entering nunc pro tunc orders: “The court had lost its jurisdiction of the case, but not of its records. It had authority, as well after as before the appeal, to amend its records according to the truth, so that they should accurately express the history of the proceedings which actually occurred prior to the appeal.” Id. at 342.
The court‘s power over its records, therefore, exists so that the court can cause its records to represent accurately what occurred previously. This power is one to enter nunc pro tunc (now for then) an accurate record entry of a judgment previously rendered. “No question can exist as to the power of the [c]ourt to make nunc pro tunc entries, for the furtherance of justice, and thus to place on the records the action of the [c]ourt, had on a former day of the term, or at a previous term, and which the clerk had omitted to enter at the time.” Hyde v. Curling & Robertson, 10 Mo. 359, 362-63 (1847).
The correction of the record can be made at any time regardless of whether the court has jurisdiction over its cause. DeKalb County, 44 Mo. at 342. “The power ... to correct clerical mistakes and misprisions is of daily occurrence, and it seems that no limit in point of time has ever been placed upon its exercise....” Loring v. Groomer, 110 Mo. 632, 639, 19 S.W. 950, 951 (1892). “During the progress of a cause and before final judgment, or after final judgment during the same term, nunc pro tunc entries may be made in furtherance of justice to conform the entries to the truth.” Saxton v. Smith, 50 Mo. 490, 491 (1872). “That a court has a right, at a term subsequent to one at which a judgment is rendered, to correct by an order nunc pro tunc, a clerical error or omission in the original entry, is indisputable.” Allen v. Sales, 56 Mo. 28, 34-35 (1874).
The power to issue nunc pro tunc orders, however, constitutes no more than the power to make the record conform to the judgment already rendered; it cannot change the judgment itself. Warren v. Drake, 570 S.W.2d 803, 806 (Mo.App.1978). “It is universally held that the only true function of a nunc pro tunc order is to correct some error or inadvertence in the recording of that which was actually done, but which, because of that error or omission was not properly recorded; and, that it may not be used to order that which was not actually done, or to change or modify the action which was taken.” City of Ferguson v. Nelson, 438 S.W.2d 249, 253 (Mo.1969)(emphasis in original).
Because a nunc pro tunc order merely causes the record to reflect the true judgment of the court, this power can be exercised at any time. See Abbott, 229 S.W.2d at 699-700. Because nunc pro tunc orders do not enter new judgments, but are confined to the record, no notice or opportunity to be heard need be given.
At common law and under the modern rules, the distinction between the power to amend a judgment and the power to correct a record has been recognized consistently. The distinction is evident in Missouri‘s cases. “The purpose of Rule 75.01 is clear. It enables the trial court to rectify any errors in the judgment, and thus simplify or forestall any further litigation at the appellate level.” Bell v. Garcia, 639 S.W.2d 185, 189 (Mo.App. 1982). “The purpose of the nunc pro tunc amendment is to make the record conform to what was actually done’ ... [A]n order nunc pro tunc may be used only to correct a clerical error in entering a rendered judgment, it may not be used to alter or amend the rendered judgment.” Unterreiner v. Estate of Unterreiner, 899 S.W.2d 596, 598 (Mo.App.1995) (quoting Brunton v. Floyd Withers, Inc., 716 S.W.2d 823, 826 (Mo.App. 1986)). See Harrison v. State, 10 Mo. 686, 689 (1847) (stating that power to correct or amend judgments where clerk has failed to enter judgment rendered may be more properly denominated the correction of a clerical error or omission).
The distinction between altering a judgment and conforming the record to the judgment was summarized as follows:
The common law rule of universal application was that a court of general jurisdiction had the power, during the term at which its judgments were rendered, to modify, vacate, or set aside those judgments.... Under Rule 75.01 of the Missouri Rules of Civil Procedure, a trial court now has the same power, during a thirty day period following rendition of a judgment, to vacate, modify or set aside that judgment.... One common law procedure still utilized by the courts to correct judgment entries of record is the issuance of orders nunc pro tunc. The literal translation of nunc pro tunc is “now for then,” which reveals both the retroactive effect of such an order and its purpose, which is to correct some error in the record of the judgment to do something now which should have been done previously at the time of the judgment. Such orders are authorized only where the original record entry of the judgment is not the actual judgment rendered by the court. In such a case the court of rendition may issue an order nunc pro tunc to make the record conform to the judgment actually rendered. Thus, orders nunc pro tunc are not true exceptions to the rule prohibiting courts from altering or setting aside their judgments after thirty days; they merely enable the courts to make their records conform to the judgment actually rendered upon a cause.
The history and rationale behind nunc pro tunc orders and
When characterizing a court‘s order, it is, therefore, necessary to determine whether an order changes the original judgment or only the record. This determination is not new to Missouri courts. In Roedel v. Roedel, 788 S.W.2d 788 (Mo.App.1990), the trial court granted temporary maintenance, custody, and child support to the wife in a dissolution of marriage proceeding. Id. at 789. After the line in the order where the court awarded temporary maintenance were the words “retroactive to date of filing.” Id. Several days later, the husband received another copy of the order pendente lite in which the phrase “retroactive to date of filing” was supplemented to read “retroactive to date of filing as to child support and maintenance.” Id.
In analyzing whether the trial court had erred in making the change without providing notice and opportunity to be heard, the court in Roedel first considered whether the order was an amended judgment entered pursuant to
In Lockett v. Musterman, 854 S.W.2d 831 (Mo.App.1993), the trial court granted a dissolution of marriage on January 15, 1991, pursuant to a stipulation entered between the parties. Id. at 832-33. The trial court formally acknowledged the stipulation on January 25, 1991, when the court signed a decree for dissolution of marriage. Id. at 833. On February 22, 1991, the trial court entered an amended decree of dissolution of marriage, which added a legal description of the marital home. Id. Because the trial court had lost jurisdiction over the judgment by February 22, 1991, the court considered whether the amended decree was an amended judgment or an order nunc pro tunc. Id. The court of appeals concluded that the amended decree was a nunc pro tunc order because it effected no substantive change; it merely added a legal description of property already described in the prior orders and known by both parties. Id. at 834.
The analysis employed in Missouri‘s cases is the same as that applied by the federal courts.
In Missouri, the determination of whether an order corrects the record or amends the judgment is not made on a level playing field. A presumption exists that there are no clerical errors in judgments. Pfeifer v. Pfeifer, 788 S.W.2d 780, 781 (Mo. App.1990). If the presumption is not rebutted, then any order that changes the record is presumed to change the judgment as well.
The party seeking to show that an order is an order nunc pro tunc must show that the original judgment entry did not accurately reflect the court‘s actual judgment and that the subsequent order merely caused the record to conform to the true judicial determination of the parties’ rights. See In re Marriage of Royall, 569 S.W.2d 369, 370-71 (Mo.App.1978). In other words, the subsequent order must do nothing more than correct a clerical error. Unterreiner, 899 S.W.2d at 598. To constitute an order nunc pro tunc, the order cannot correct anything that resulted from the exercise of judicial discretion because any such change constitutes a change in the court‘s judgment. Gordon v. Gordon, 390 S.W.2d 583, 586-87 (Mo.App.1965). Additionally, as has been long established, the clerical error must be discernible from the record. Warren, 570 S.W.2d at 806.
Applying the law to the facts of the instant case, the record establishes that the September 26 decree is a nunc pro tunc order. The September 26 decree merely transposes the terms “Petitioner” and “Respondent” from the original decree. The original decree, among other things, granted to “Petitioner” the name “Shirley A. Cook” and the marital property designated as Shirley Pirtle‘s in the property settlement agreement. The record, however, clearly establishes that the petitioner was Husband.
Thus, the original decree, by its use of the terms “Petitioner” and “Respondent,” granted “restoration” of the name “Shirley A. Cook” to Husband and awarded to him the property that the parties agreed would be Wife‘s. It is obvious that the court did not intend as an exercise of judicial discretion to restore the name “Shirley A. Cook” to Husband and to incorporate the settlement agreement into the decree, while, at the same time setting aside to each party marital property that each agreed would be set aside to the other. See Johnson v. Johnson, 654 S.W.2d 212, 214 (Mo.App.1983). Rather, an error was committed in labeling the parties. See Goldfarb, 527 S.W.2d at 431. The mislabeling of parties constitutes a clerical error, not a judicial error. Royall, 569 S.W.2d at 371. This conclusion is confirmed by the judge‘s docket sheet. The docket entry states, in pertinent part, “Court is advised of typing error contained in Decree entered 9-10-84 and does enter Amended Decree of Dissolution reflecting correction of same.”
The September 26 decree corrected only a “typographical” error, the misuse of the terms “Petitioner” and “Respondent” in the original decree, so that it conformed to the court‘s true judgment. The September 26 decree did not delete any provisions, add any provisions, or otherwise change the decree. Consequently, the “decree” bearing the date of September 26, 1984, is an order nunc pro tunc correcting the record of the trial court‘s September 10, 1984, judgment. Id. The order of September 26, 1984, relates back to the September 10, 1984, decree. As a consequence, September 10, 1984, remains the date of the original rendition of the judgment
Wife contends that the September 26, 1984, decree could not have been a nunc pro tunc order because, she asserts, the September 26 decree corrected a judicial, not clerical, error in the September 10 decree. Wife points to the fact that the separation agreement filed with the court was not signed or notarized until September 11. Wife disregards, however, the undisputed fact that according to the September 10 docket entry, the parties had by that date entered into their separation agreement. The decree entered on September 10 also states that the parties had entered into a written settlement agreement and refers to portions of that document. The fact that the document attached to the September 26 decree is signed and notarized on September 11 is insufficient to establish that the trial court committed judicial error. Furthermore, the docket entry of September 24 indicates that the September 26 decree served to correct only the typographical errors in the original decree, another fact that Wife does not dispute. The dissolution decree entered on September 26, 1984, is a nunc pro tunc order.
Because the dissolution decree that wife attempted to revive was originally rendered on September 10, 1984, the ten year limitation period of
Wife makes several arguments in an attempt to avoid the conclusive presumption that the judgment she seeks to revive has been paid. Each of Wife‘s contentions, however, contradicts the clear and unambiguous language of
Wife first asserts that the ten-year period set forth in
Wife relies on In re Estate of Remmele, 853 S.W.2d 476 (Mo.App.1993). In Remmele, the decedent had entered into a separation agreement with his former wife. Id. at 478. The agreement required him to execute an irrevocable will naming his three children as sole beneficiaries of his estate. Id. He did not do so. Id. When he died, two of the decedent‘s children brought an action against his estate as third party beneficiaries of the separation agreement. Id. The court of appeals concluded that the statute of limitations for breach of contract actions was tolled by
Wife‘s reliance on Remmele is misplaced. In Remmele, the statute of limitations at issue was that governing actions for breach of contract. Id. at 478. In the instant case,
More importantly, the tolling statute upon which the court in Remmele relied,
Although Wife cites no authority that supports her contention that the statutory period in
This Court finds Hedges to be authoritative in the instant case. Hedges rests upon a plain reading of
Wife‘s inability to collect on her judgment for the first five months of the statute‘s ten year period does not justify ignoring the plain dictate of the legislature. Wife could have pursued her 1991 motion to enforce or timely filed her motion to revive. She did neither. Her argument is without merit.
Wife next proffers an argument based upon the holding of Excelsior Steel Furnace Co. v. Smith, 17 S.W.2d 378 (Mo. App.1929). The court in Excelsior Steel held that a pending suit on a judgment instituted
Even if the holding in Excelsior Steel were to apply to a case in which a motion to enforce was filed and an untimely motion to revive was then filed three years later, the holding of Excelsior Steel is of no assistance in this case. Excelsior Steel‘s construction of the predecessor of
Excelsior Steel‘s holding was first criticized in Wormington v. City of Monett, 358 Mo. 1044, 218 S.W.2d 586 (banc 1949). In Wormington, this Court held that the ten year statute of limitations continued to run from the date of rendition of the judgment even where the parties were appealing the judgment at issue. Id. at 1048-50, 218 S.W.2d at 588-89. This Court then addressed the holding in Excelsior Steel and concluded that Excelsior Steel misconstrued the predecessor of
Under the language of
Finally, Wife argues that her untimely motion to revive relates back to her motion to enforce. Her argument is functionally the same as that rejected above. A timely motion to enforce does not prevent the expiration of the time limitation contained in
Wife‘s relation back argument is also defeated by the only authority upon which she relies,
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.
Subsection (a) of
A pleading may be amended once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the pleading may be amended at any time within thirty days after it is served. Otherwise, the pleading may be amended only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
Because Husband filed a responsive pleading to Wife‘s motion to enforce,
In sum, the statute of limitations in
III.
One issue remains. Husband also complains that the trial court erred in denying his request to terminate his maintenance obligation. This Court‘s review of the trial court‘s denial of Husband‘s request is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). This Court will affirm the trial court‘s judgment if its findings are supported by substantial evidence and are not against the weight of the evidence. Id. at 32. Husband‘s claim is that the trial court‘s determination was not supported by substantial evidence and was against the weight of the evidence. This Court has read the transcript of the proceedings filed herein. A recitation of the facts serves no useful purpose. That portion of the trial court‘s judgment denying Husband‘s request for termination of Wife‘s maintenance was supported by substantial evidence and was not against the weight of the evidence.
IV.
That portion of the judgment interpreting the meaning of the parties’ separation agreement and reviving the judgment is reversed. In all other respects, the judgment is affirmed.
BENTON, C.J., ROBERTSON and WHITE, JJ., and BARNES, Special Judge, concur.
PRICE, J., dissents in separate opinion filed.
LIMBAUGH, J., concurs in opinion of PRICE, J.
HOLSTEIN, J., not sitting.
PRICE, Judge, dissenting.
I dissent.
In denying a woman‘s attempt to enforce an unpaid $40,000 judgment from an Amended Decree of Dissolution, the majority confuses the distinction between an amended judgment pursuant to
In this case, the trial court entered an Amended Decree of Dissolution. The trial court is allowed to do this because it is granted control of its judgments for thirty days pursuant to
A nunc pro tunc order is something quite different. It is an order that is generally entered after the time within which a trial court is allowed control of its judgment has expired. Because of this, a nunc pro tunc order may only correct clerical-type mistakes. See, 2 Mo. Practice section 19.07 (1992) and 16 Mo. Practice section 75.01-7 (1976). The unique nature of a nunc pro tunc order is stated in Black‘s Law Dictionary 1218 (Revised 4th Ed.1968), as:
A phrase applied to acts allowed to be done after the time when they should be done, with a retroactive effect, i.e., with the same effect as if regularly done. (Emphasis supplied.)
While nunc pro tunc orders are within the inherent power of a court, in 1987 we provided specific and separate authority, apart from
Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time ... (Emphasis supplied.)
The majority cites to no Missouri authority to support its proposition that an amended decree entered within the period of time that the trial court has jurisdiction pursuant to
The record shows that an original judgment was filed on April 1, 1988. Thereafter on April 15, 1988, a first amended judgment was filed. The amended judgment was essentially the same as the first judgment but substituted the word “plaintiff” for “defendant” in paragraphs 14 and 15 of the findings of fact. The notice of appeal was filed on May 13, 1988. A trial court may amend a judgment within thirty days after entry of judgment. Rule 75.01. While the trial court did not vacate the original judgment before filing the amended judgment, the effect of the amendment was entry of a new judgment. Daniels v. Daniels, 675 S.W.2d 29, 32 (Mo.App.1984). Consequently, the amended judgment was not final for purposes of appeal until May 15, 1988, and the notice of appeal was timely. Rule 84.05.
Of course, the majority is free to abandon previous Missouri law and to read in a new way our carefully crafted rules of civil procedure, if logic or good cause would require it to do so. The majority decision, however, can claim neither.
The majority‘s argument is not supported by logic but instead violates classical rules of logic. The essence of the majority‘s argument is that:
- Nunc pro tunc orders only correct clerical errors;
- This order corrects clerical errors; and, therefore,
- This order is a nunc pro tunc order.
This form of argument is referred to in basic logic textbooks as the “Fallacy of Affirming the Consequent” and is universally condemned as invalid. Irving M. Copi, Introduction to Logic, p. 292 (5th ed. ); R. Angell, Reasoning and Logic, p. 148 (1964). The mistake in this type of argument is simply stated by Angell as follows:
This form is invalid since even if we accepted both premises as true, it would be possible to deny the conclusion consistently:
If it has been sub-zero weather for three days, then it is safe to skate. (If p then q.)
It is safe to skate. (q)
Hence, it has been sub-zero weather for three days. (Hence, p.)
It is easy to see that the conclusion does not follow necessarily. The reason why it is now safe to skate might be something other than three days of sub-zero weather; perhaps ten days of weather at twenty above zero. To say this would not be to deny that if there had been three days of sub-zero weather it would also have been safe to skate, or that it is safe to skate now. In other words the premises could both be true, though the conclusion was false; thus it is not valid.1
The majority opinion also fails to establish any good cause for abandoning the law stated in Moyer v. Walker. No mischief or injustice is cited resulting from that opinion. Sadly, however, this is not true for the majority decision. It creates an immediate injustice. It allows a husband judgment debtor to walk away from a $40,000 judgment, leaving his unpaid former wife without remedy.
Notes
- All judges are lawyers;
- “A” is a lawyer; therefore
- “A” is a judge.