Opinion
33385.
DECIDED JULY 10, 1951.
Complaint; from Fulton Civil Court — Judge Parker. October 13, 1951.
Herbert Johnson, Henry M. Hatcher Jr., William L. Moore, for plaintiff in error.
Grant, Wiggins, Grizzard Smith, contra.
1. A nunc pro tune entry is for the purpose of recording some action that was taken or judgment rendered previously to the making of the entry, which is to take effect as of the former date. Such an entry can not be made to serve the office of correcting a decision, however erroneous, or supplying non-action on the part of the court.
2. Where a valid judgment overruling demurrers to a petition is made and entered upon the minutes of the court, the court is without power at a subsequent term to enter a contrary order revoking, altering, or modifying such judgment, and where at such a subsequent term the trial court again rules upon the identical demurrers, such latter judgment is void and should be set aside.
3. The motion to dismiss the writ of error is denied.
DECIDED JULY 10, 1951.
On May 10, 1949, General Tire Service Company filed a petition in the Civil Court of Fulton County in which it is alleged that William T. Carlisle is indebted to it in the amount of $1600. On May 26, 1949, the defendant filed his answer and demurrer thereto. On July 6, 1949, the plaintiff filed an amendment to the petition. On July 19, 1949, the defendant renewed his original demurrer and added several additional grounds. On August 4, 1949, one of the judges of the Civil Court of Fulton County entered an order overruling the demurrers. On December 8, 1949, another judge of that court, passing upon the identical petition and demurrers which had already been overruled on August 4, 1949, by the first judge of that court, overruled certain of the grounds of demurrer and sustained certain others with leave to amend within 15 days, otherwise the petition to stand dismissed. No amendment was made to the petition, and on February 2, 1950, the judge who had entered the order of December 8, 1949, entered an order dismissing the petition.
On February 23, 1950, the plaintiff filed a motion to set aside the judgments of December 8, 1949, and February 2, 1950, and a rule nisi was issued thereon on that date.
While the motion to set aside the judgments of December 8, 1949, and February 2, 1950, was still pending, the defendant, on March 9, 1950, filed a motion praying that an order be entered revoking nunc pro tunc the judgment of August 4, 1949. On March 13, 1950, the judge who had entered the judgment overruling the demurrers on August 4, 1950, entered an order nunc pro tunc revoking the judgment of August 4, 1949, and the plaintiff filed exceptions pendente lite to such judgment, on April 5, 1950.
On October 13, 1950, the judge who had entered the judgments of December 8, 1949, and February 2, 1950, upon the motion to set aside those judgments, overruled the motion and the plaintiff excepted.
The material allegations of the defendant's petition for an order revoking nunc pro tunc the judgment of August 4, 1949, which overruled the demurrers to the plaintiff's petition are: "(1) On June 20, 1949, there came on before the court for hearing a demurrer of the defendant in the above-stated case to the petition of the plaintiff. No order was passed at the time of said hearing as it was indicated plaintiff would amend its petition. On July 6, 1949, the plaintiff filed an amendment to its petition and on July 19, 1949, the defendant filed demurrers, general and special, to plaintiff's petition as amended. As your Honor was at that time holding all of the papers, the demurrer to the petition as amended was sent to you by the clerk of the court. (2) Your Honor, believing that the renewed demurrer was submitted by the defendant on August 4, 1949, passed an order overruling all of the defendant's demurrers to the plaintiff's petition as amended, forwarding a copy of said order to the attorneys representing both the plaintiff and the defendant. (3) Immediately on the receipt of said order by the attorney representing the defendant, he immediately contacted Herbert Johnson, Esq., attorney for the plaintiff, and stated that the order had been entered by the court without argument on the demurrer and that he desired to argue the demurrer and would contact the court with a view toward having the order revoked and the case sent to the demurrer calendar for hearing. Mr. Johnson made no statement indicating that he had any objection to this procedure; whereupon, the attorney representing the defendant contacted your Honor and stated the desire to argue the demurrer and requested the court to revoke its order overruling the demurrer and assign the case to the demurrer calendar for trial [argument?]. The court stated that it would grant the request and revoke the said order and have the case reassigned to the demurrer calendar. Movant avers on information and belief that the court destroyed the original order [issued on August 4, 1949], the court not then knowing that an entry had been made on the docket in the clerk's office showing a ruling on the demurrer, and intended by such action to revoke said order. (4) The court then instructed the clerk to reassign the case to the demurrer calendar and the same was so assigned. Defendant avers that defendant's counsel informed plaintiff's counsel that said order was being revoked. On December 2, 1949, a hearing on the demurrer was held before . . a judge of said court. During the course of said hearing . . [this judge] asked if the demurrer had not been previously ruled on, his attention being directed to certain markings on the demurrer which would indicate the fact that same might have been previously passed upon; whereupon, the attorney representing the defendant stated to . . [the court] that an order had been entered. . but the same had been revoked. The attorney representing the plaintiff was present in court at the time this question was asked . . and his answer given by the attorney representing the defendant and the attorney representing the plaintiff made no protest that the statement made by the attorney representing the defendant was correct [incorrect?], and proceeded to argue against the sustaining of the demurrer; the arguments lasting approximately two hours. (5) On December 8, 1949, . . [the court] entered an order sustaining certain of the demurrers of the defendant, including the general demurrer, with . . 15 days leave to amend. No amendment was filed by the plaintiff and no exception was taken to the order . . on demurrer. (6) The plaintiff has now filed in this court a petition to set aside the order . . of December 8, 1949, on the ground that the same is a nullity for the reason the demurrer had been previously passed upon by your Honor, and that the order of August 4, 1949, is a valid order and the same is unrevoked. (7) Under and by virtue of the provisions of Code § 81-1201, the court has the power to amend the entries of its orders on the minutes or the records and other proceedings nunc pro tunc when there is something on the face of the proceedings to amend by, from which what actually took place in the prior proceedings can be clearly ascertained and known; and further in all cases where such amendment will clearly be in the furtherance of justice. Defendant shows that in furtherance of justice and in view of the fact that what was done in the prior proceedings is clearly ascertainable and known, your Honor should now enter an order nunc pro tunc revoking the order of August 4, 1949, and directing the clerk of the Civil Court of Fulton County to amend the docket nunc pro tunc to show the revocation of said order."
1. "An oral announcement by the judge of the superior court sustaining a demurrer to a plea, does not become a judgment of the court until reduced to writing and signed by the judge. Lytle v. DeVaughn, 81 Ga. 226 ( 7 S.E. 281); Freeman v. Brown, 115 Ga. 23 ( 41 S.E. 385); Cureton v. Cureton, 120 Ga. 559, 566 ( 48 S.E. 162); Alexander v. Chipstead, 152 Ga. 851, 861 ( 111 S.E. 552); Macon, Dublin Savannah Railroad Co. v. Leslie, 148 Ga. 524 ( 97 S.E. 438); Swilley v. Hooker, 126 Ga. 353 (2) ( 55 S.E. 31), [and] the refusal of the judge at a succeeding term to enter a written judgment nunc pro tunc, conformably to the oral announcement previously rendered, will not be reversed." Foy v. McCrary, 157 Ga. 461 ( 121 S.E. 804).
(a) "When, upon the call of a suit pending in the superior court, neither party appeared, and referring to the case, the judge merely made an entry on the trial docket, `November term, 1904, dismissed for want of prosecution,' and the case was stricken from the docket, but no order was ever taken, nor entry made on the minutes, such entry by the judge, without more, was insufficient to accomplish a dismissal of the suit. Williams v. Rawlins, 33 Ga. 117 (10), 123. See also Greenfield v. Vason, 74 Ga. 126 (3)." Dixon v. Minnesota Lumber Co., 132 Ga. 347 ( 64 S.E. 71).
(b) "A nunc pro tunc entry is for the purpose of recording some action that was taken or judgment rendered previously to the making of the entry, which is to take effect as of the former date. Such an entry can not be made to serve the office of correcting a decision however erroneous, or of supplying nonaction on the part of the court." Pendergrass v. Duke, 147 Ga. 10 ( 92 S.E. 649).
Applying the principles of law in the foregoing paragraphs to the facts of this case, it is clear that the trial court erred on March 13, 1950, in entering its judgment nunc pro tunc revoking its judgment of August 4. The judgment of August 4, overruling the demurrers to the petition was valid and duly entered upon the minutes of the court, and whether the court intended at some time during that term to revoke its judgment — and this is not apparent from the record — or whether it attempted to do so by destroying the original copy of its order of August 4, believing that it had not been entered on the minutes, or whether the judge entered upon the card attached by the clerk to the petition, "back to the demurrer calendar" in an effort to revoke the judgment of August 4, is immaterial. Once its judgment of August 4 had been entered upon the minutes of the court, it was not final until the term ended, but it was no longer in the breast of the court and could be revoked, modified, or altered only by another valid order rendered during the same term and entered upon the minutes. See, in that connection, Blakely Hardwood Lumber Co. v. Reynolds Bros. Lumber Co., 173 Ga. 602 ( 160 S.E. 775). It is not apparent from this record that any such valid order revoking the judgment of August 4 was entered during that term and none of the alleged actions taken by the trial court was effectual to that end.
2. "When a judgment has been rendered either party may move . . to set it aside for any defect not amendable which appears on the face of the record or pleadings." Code, § 110-702. From what has been said in division 1 of this opinion, it is clear that the trial court was powerless, at a subsequent term, either directly or indirectly, to revoke the valid subsisting judgment of August 4 overruling the demurrers. It follows, therefore, that the judgments of December 8, ruling upon the identical demurrers as those ruled upon on August 4, and February 2, dismissing the petition, were void and the trial court erred in refusing to set them aside. The court was without power to enter, at a subsequent term, an order contradicting the valid subsisting judgment of August 4, and counsel could not by agreement or otherwise confer such power upon the court.
3. The motion to dismiss the writ of error is denied.
Judgment reversed. Gardner and Townsend, JJ., concur.