Browder v. Faulkner , 82 Ala. 257 ( 1886 )

CLOPTON, J.

— The power of courts to amend judgments, after the close of the term, extends to all omissions to enter the judgments pronounced by the court, and to clerical errors in the form of the entry, whether by introducing a fact which ought to appear on the record, or by striking out a statement of a fact improperly introduced, and when the record affords sufficient evidence. But, when the defect consists in the failure of the court to.render the proper judgment, or arises from a want of judicial action, the record can not be corrected after the term has closed, the cause being no longer sub judice. The purpose of amendment is, to make the judgment conform to what the court intended it should be; to set right the record, and make it speak the truth, so that omissions or clerical errors shall not prejudice parties litigant. The power to amend nunc pro tunc is not revisory in its nature, and is not intended to correct judicial errors. Such amendments “ ought never to be the means' of modifying or enlarging the judgment, or the judgment record, so that it shall express something which the court did not pronounce, even although the proposed amendment embraces matter which ought clearly to have been pronounced.” However erroneous, the express judgment of the court can not be corrected at a subsequent term.— Whorley v. M. & C. R. R. Co., 72 Ala. 20; Emerson v. Heard, 81 Ala. 443; Freeman on Judgments, § 70. Section 702 of the Code, which authorizes judges of probate to “ complete the minute-entries and decrees in causes in their courts, when the same are incomplete on account of their failure to make the necessary entries at the time they should have been made,” has been held to be merely a statutory affirmation of the inherent common-Jaw power possessed by all courts of record. It does not enlarge the power of amendment nunc pro tunc, and requires record evidence, or quasi record. — Lilly v. Larkin, 66 Ala. 122.

The action is brought by one of the minor heirs of F. B. Faulkner, against the administrator of a surety on the bond of the executor, and was commenced in 1880. On the settlement of the estate, in April, 1876, the Probate Court rendered judgment against the executor, in favor of the guardian ad litem of six minor heirs, naming them, for the aggregate sum of $686.13. In September, 1885, on motion of the heirs, and without notice to the executor, the court amended the judgment, so as to render a separate judgment in favor of each heir, for one-sixth of the amount of the original judgment. The judgment as originally rendered, did not make distribution of the assets between the parties entitled, which is requisite to its 'finality. It is interlocutory in its nature, operating an ascertainment of the amount due by the executor to the six named heirs; but its payment could not have been enforced by the process of the court. — Hollis v. Caughman, 22 Ala. 478; Davis v. Davis, 6 Ala. 611. There was a want of judicial action. By the amendment, this interlocutory judgment was converted into six separate final judgments, upon which executions could issue, — a total alteration of the express judgment of the court, without competent evidence showing that it was not the judgment which the court then pronounced, and intended to render. It may be, that had distribution been made between the heirs, and the amount due to each been ascertained, it would have been competent to amend it, by rendering a formal decree in favor of each, regarding such as a clerical error in the entry of the judgment; but when the term had expired at which it was entered, it was beyond the competency and jurisdiction of the court to revise or reverse or annul its own judgment, because of errors of fact or law, or to modify, vary, or enlarge in any material respect a judgment which deliberately expressed the judicial action, and entire judicial action, at the time of its rendition. Ex parte Robinson, 72 Ala. 389.

Tbe liability of tbe surety on tbe executor’s bond is contingent, until the executor fails in tbe performance of a duty required of him bv law. Without a judicial ascertainment of tbe default of the principal, no liability arises, and an action at law can not be maintained against the surety. Tbe plaintiff is not entitled to a recovery against tbe surety, unless be shows a judgment in bis favor, for his distributive share. Tbe ascertainment of tbe aggregate amount due to tbe four heirs is insufficient.— Gilbreath v. Manning, 24 Ala. 418; Fretwell v. McLemore, 52 Ala. 124. Tbe complaint alleges such judgment; but the only evidence offered to establish it is a transcript of the motion to amend nunc pro tunc, and the order granting the motion. The objection of tbe defendant to its introduction should have been sustained.

This conclusion being fatal to tbe plaintiff’s action, it is unnecessary to consider the other questions raised.

Beversed and remanded.