A. G. Story Mercantile Co. v. McClellan , 145 Ala. 629 ( 1906 )

DENSON, J.

The A. G. Story Mercantile Company sued Henry McClellan in the city court of Talladega on a promissory note, and obtained judgment by default against him on the 7th day of May, 1904. The summons and complaint were issued on the 1st day of April, 1904, and were executed on the 2d day of April, 1904, by the sheriff leaving a copy with the defendant. The original complaint contained no averment of a waiver of exemptions either as to personal property or the homestead. On the day the judgment was rendered, and before it was rendered, by leave of the court the complaint was amended. The amendment material to- our consideration here is in this language: “And plaintiff avers that by a separate instrument in writing, subscribed by the defendant and attested by one witness, the defendant waived all right to claim any homestead or other exemptions under the laws of Alabama as against the indebtedness evidenced by said note.” There is no averment in the complaint as to the status of the defendant, whether married or single. In the judgment by default rendered is found this recital: “As against this judgment and the executions to be issued thereon there are no exemptions of real or personal property^.” On June 27, 1904, more than 30 days after the judgment was rendered, the defendant filed a motion to amend and correct nunc pro tunc the judgment rendered, by striking out that part cf it adjudging that the defendant was not entitled to any exemption as to real property. The court overruled a demurrer to the motion, and on the evidence adduced granted the motion and corrected the judgment in accordance with the prayer of the motion. Prom the judgment rendered by the court on the motion, the plaintiff appealed.

By the act of the General Assembly establishing the city court of Talladega, judgments rendered by that court, after the expiration of 30 days from their rendition, are to be taken and deemed as completely beyond the control of the court, as if the term of said court at which said judgments were rendered had ended at the end of said 30 clays. — Acts 1894-95, p. 1227. So, the motion and proceedings had thereon must be considered as if the motion was made after the term at which the judgment was rendered had expired. It must follow, then, under the rule established by this court, that the court had no revisory power over the judgment rendered; could not correct any judicial errors that may have been committed; could not set aside the judgment, unless it was void on its face. It could, however, entertain a motion to amend and correct ministerial errors under the authority-conferred by section 3334 of the Code of 1896. — Ex parte Payne, 130 Ala. 189, 29 South. 622 ; Ex parte James, 125 Ala. 119, 28 South. 69 ; Schwarz v. Oppenheimer, 90 Ala. 462, 8 South. 36 ; Johnson v. Glasscock, 2 Ala. 522 ; Gibson v. Wilson, 18 Ala. 63 ; Harris v. Billingsley, 18 Ala. 438 ; Whorley v. M. & C. Ry. Co., 72 Ala. 20 ; Ivey v. Gilder, 119 Ala. 495, 24 South. 715 ; Tippins v. Peters. 103 Ala. 196, 15 South. 564 ; Wiggins v. Steiner, 103 Ala. 655, 16 South. 8 ; Ex parte Robinson, 72 Ala. 389 ; Pettus v. McClannahan, 52 Ala. 55. Under the authorities, supra, the failure of the court to act or its incorrect action can never authorize a nunc pro tunc entry. “If no judgment be rendered, or if an imperfect or improper one be rendered, the court has no power to remedy any of these errors or omissions as clerical misprisionsIn the language of Brickele, C. J., in the case of Whorley v. M & C. Ry. Co., supra: “The correction is of clerical errors — it is not of the express j udgment that the court-may have pronounced. It i<s in respect to an error or defect in the entry of the judgment the court rendered; the omission of a statement of a fact the parties are entitled to have spread on the record, or, it may be, expressing the statement of a fact incorrectly or impertinently introduced. The clerical duty is the entry of the judgment the court renders, however erroneous it may be, and, if the duty is performed, the correction of the error must, be made in an appellate court.” — Freeman on Judgments (3rd Ed.) § 68, and authorities cited in note 1. To entitle a party to an order amending a judgment, he must establish that the entry as made does not conform to what the court intended it should be when it was ordered; and this on account of clerical errors, or omissions.

Section 2107 of the Code provides that: “In any suit:, at law or in equity, in which a waiver of the right of homestead or other exemption is sought to- be enforced, the fact of Avaiver and its extent must be averred in the complaint, petition or bill, and by appropriate pleading may be controverted; and if such averment is sustained, the fact of waiver and its extent must be declared in the judgment or decree,” etc. There can be no doubt that this declaration of the waiver in the judgment involves án adjudication by the court of the fact of waiver and its extent. Until the court so adjudges, the clerk has no authority to embody in the judgment, anything with reference to such waiver and its extent. When the court does so adjudge, the clerical duty is the entry of the judgment the court has rendered. In this case we have the. adjudication by the court of the fact of waiver and its extent. Brown v. Leitch, 60 Ala. 313, 31 Am. Rep. 42. Indeed, the motion does not proceed upon the theory that the court did not adjudge the waiver and its extent; but, according to our understanding of the facts alleged, the theory and contention of the defendant (appellee) is that the court ivas without jurisdiction to render the judgment declaring the waiver and its extent with respect of the homestead exemptions. Therefore that the judgment is void on its face. This contention is rested upon the proposition that, in the exercise of jurisdiction to declare the fact of waiver and its extent, the city court, quoad hoc, is a court of limited and -statutory jurisdiction. Therefore that jurisdictional facts cannot be inferred from the exercise of jurisdiction or from their recital in the judgment entry, but such facts must be averred in the complaint. The supposed defects in' the complaint as pointed out in the motion, and which are insisted upon as causing the complaint to fall short of sufficiency to give the court jurisdiction to declare the waiver of exemptions as to the homestead, are lack of an averment that the defendant was an unmarried man, and lack of averment that the waiver particularized the lands to which it applied. Section 2106 of the Code of 1896 provides the manner in which waiver of exemptions as to homestead may be made. By its terms the waiver must be by a separate instrument in writing, subscribed by the party making the same, and attested by one witness; and, if the party is a married man, such waiver shall not be valid without the voluntary signature of the wife, etc. It- is true the fact of waiver and its extent must, be averred in tlie complaint. — Code 1896, § 2107 ; Goetter v. Pickett, 61 Ala. 387 ; Taylor v. Cockrell, 80 Ala. 236. But the statute does not fix any set terms in which the averments are to be made, nor does it require that facts that would distinguish a valid from an invalid waiver shall be set out in the complaint in detail, but the mere allegation of the fact that the waiver has been made and its extent, seems to be the full requirement in this respect. This construction is reinforced by the further provision in the statute that the fact of waiver may be controverted by appropriate pleading. — Code 1896, § 2107. Granting the defendant was an unmarried man at the time the waiver was made, could it be contended with any show of reason in the light of the averments of the complaint, that, the judgment was void on its face because there is not an averment in the complaint as to the status of the defendant — whether married or unmarried? We think not, for the simple reason that the complaint, as we have seen, shows with preciseness a waiver of homestead exemptions made in conformity with the statute when the waiver i.s made by an unmarried man. That the defendant is, and was at the time the waiver was made, a married man is a fact dehors the record. The fact that defendant was a married man could have been shown in this-case, as it was shown, only by evidence extrinsic to the record. This sort of evidence cannot be resorted to on a, motion to enter judgment mme pro- tunc.- — Code 1896, § 3331; Davis' Case. 136 Ala. 136, 33 South. 813. and authorities there- cited.

Without determining the question as to whether the city court is a court of general or limited jurisdiction with respect of declaring the fact of waiver of exemptions, we are at the conclusion that the complaint was sufficiently specific in its averments to call into exercise the jurisdiction of the court to declare the fact of waiver and its extent, and therefore that the judgment is not void on its face. There is no merit in the proposition that, the waiver fails to particularize the lands; nor in the proposition that the- judgment entry does not follow the averments of the complaint. If there is merit in the fifth ground of the motion it is apparent that the defendant’s remedy is not by motion to amend ini-no pro tune the judgment entry. It is clear to our minds that the judgment declaring the fact of Avaiver is not the result of a clerical error or omission, hut that it conforms to Avhat the court intended it should bo at tlio time it was rendered. In otlier Avords, that it is the solemn express adjudication of the court. And it aatis therefore beyond the power of the court to revise or correct any judicial errors that may. have been committed in its rendition.

The final conclusion is that the court erred in overruling the demurrer to the motion and in allowing the affidavits offered by the defendant (movant) as evidence. The judgment of the city court is revensed, and a judgment AA’ill he here rendered sustaining the demurrer to the motion and overruling the motion. The appellee must pay the cost of the appeal.

ReArorsed and rendered.

_ Tyson, Simpson, and Anderson, JJ., concur.