Crowell v. Crowell , 191 Ga. 36 ( 1940 )

A judgment regular on its face can not at a subsequent term be amended in a material respect, even though the amendment makes it conform to the original judgment as orally rendered; there being no proceeding brought for that purpose, with due notice to parties whose rights are to be affected.

No. 13495. OCTOBER 16, 1940. A divorce proceeding between the parties to this case resulted in a decree of total divorce in the superior court of Treutlen County, and on August 22, 1939, a decree was entered by Judge Graham, awarding the custody of their minor child, Howard, to the mother, "with the privilege of the said T. A. Crowell [the father] to have him live with him six months of each year." On June 13, 1940, this court ruled that the superior court of Fulton County, where the father and mother were both then residing, had jurisdiction of the respondent (the mother) and the minor child, in a habeas corpus proceeding brought against her by the father, notwithstanding she had for the time being placed the child beyond the limits of Fulton County and with respondent's mother. On June 28, 1940, the judge of the superior court of Treutlen County entered a decree as follows: "It appearing to the court that on the 22nd day of August, 1939, . . a decree was entered granting the divorce and awarding the custody of the minor child of the parties to the plaintiff, the mother, and in which it was provided the father, the defendant, should have the child live with him six months of each year: It further appearing that the provision in said decree that the child should live with the father six months in each year was inadvertently incorporated in said decree, and that such was not the judgment of the court in said case, but that the judgment of the court in said case in said particular was that the custody of said child, Howard, be awarded to the mother, with privilege of the father to see the child and the child visit him at reasonable times; and that counsel for plaintiff, misunderstanding the award of the court, prepared the said decree with said six-months provision therein, and presented the same to the court for signing, and that the court signed same as is usual in such cases without reading the judgment or knowing that same contained the six-months provision contrary to the announced judgment of the court in the case, the court having announced the judgment in open court: It is therefore ordered that said judgment be and the same is hereby corrected, so as to conform to the judgment pronounced and rendered by the court in said case, by striking therefrom the provision ``with the privilege of said T. A. Crowell to have him (referring to the child Howard) live with him six months of each year,' so that said judgment and decree will read and be in said case when corrected as follows, to wit: In the above-named and stated case, . . it is further ordered that the said Mrs. Willodean Crowell shall have the custody and control of their minor child, Howard, with the privilege of the said T. A. Crowell to see the child and to have the said child visit him at reasonable times." A concluding clause of this judgment is quoted in the opinion, infra. This judgment was entered in the presence of counsel for both parties.

Upon the hearing of the habeas-corpus proceeding in Fulton superior court after the ruling of the Supreme Court to the effect that Fulton superior court had jurisdiction, Judge Paul S. Etheridge ruled that the decree of Treutlen superior court of August 22, 1939, "is adopted, and the possession and custody of the said minor child is awarded to the father, T. A. Crowell, plaintiff, for and during the period of six months beginning at 12 o'clock noon, Saturday, July 6th, 1940, at which time the respondent shall deliver said child to the father, T. A. Crowell." To this judgment Mrs. Crowell excepted. While, as recognized in dealing with this case on a former appearance (Crowell v. Crowell, 190 Ga. 501,9 S.E.2d 628), a decree in a divorce case awarding the custody of a child gives only a prima facie right, and a habeas-corpus court is not always concluded by its terms, neither party, so far as the record shows, undertook to show that any change had taken place in the status of the parties between the date of the divorce and the institution of the proceeding for habeas corpus and each elected to stand on the rights claimed by virtue of the decree in the divorce case, the order of the judge which forms the basis of the exception before us disclosing that he had before him only the two orders of Treutlen superior court shown above, and that he was called on only to decide which of the two was effective. The decree entered at the trial term of the divorce case by its terms gave to each of the parents the custody of their only child, a boy, for six months in each year. At a later term of the court the subsequent decree was entered. While the latter contains the clause that "The said [former] judgment is hereby corrected as aforesaid, in open court in the presence of Will Stallings, attorney appearing of record in the case for the plaintiff, and N. G. Reeves Jr., attorney appearing of record for the defendant in said case, to conform to the judgment as originally pronounced and rendered in the case," there is no statement that this second decree was entered with the consent of the husband and father, or that he had any previous notice whatever that it would be entered. The amended decree withdrew from him substantial rights accorded to him under the terms of the original decree, to wit, the right to the custody of his son for six months of every year during his minority. It is not recited in the amended decree that the same was instituted by any motion or proceeding of any kind, and there is no such recital in the bill of exceptions. Indeed the brief of counsel for Mrs. Crowell recites that "While there was no petition filed, and the court brought the proceeding on its own motion, it was in fact in the nature of a direct proceeding to change the record to speak the truth," etc. In Brady v. Brady, 71 Ga. 71, this court was dealing, not with an order of a State court, but with the validity of an order of the district court of the United States, as a court of bankruptcy, to correct the mistake of the assignee in the numbering of the lots set apart as an exemption to the bankrupt. No question of different terms of court was there involved, and it was stated in the opinion that the error was corrected upon a proceeding brought for that purpose by the bankrupt against the assignee, of which the plaintiff had notice. The case of Tyler v. State, 125 Ga. 46 (53 S.E. 818), does not sustain the position of the plaintiff in error, the holding there being that a clerical omission to include in the judgment as written a part of the oral pronouncement is to be treated as a mistake which may afterward be so corrected as to make the judgment conform to the truth; and that if done at the same term, the court may make the correction without notice to any one; if at a subsequent term, it must be upon notice to the parties at interest. The ruling in Pulliam v. Jenkins, 157 Ga. 18 (121 S.E. 679); which also is relied on by the plaintiff in error, is merely to the same effect. The Code, § 24-104, par. 6, which declares that every court has power to amend its own records so as to make them conform to the truth, has never been given the application contended for in the instant case, but on the contrary it has been held that it does not enable a court to change a judgment in substance or in any material respect. The opinion in Richards v. McHan, 139 Ga. 37, 40 (76 S.E. 382), quoted from Freeman on Judgments, wherein it was said that the principles of public policy requiring the application of the doctrine of estoppel to judicial proceedings, in order to secure the repose of society, are as imperatively demanded in the cases of private individuals contesting private rights under the form of proceedings in habeas corpus as if the litigation were conducted in any other form. In that case Mr. Justice Evans observed as follows: "Partaking of the general characteristics of conclusiveness between the parties as ordinary judgments, such judgments likewise fall under the general rule regarding their amendment. In respect to amendment of judgments the general rule is, that after the expiration of the term at which the judgment was rendered it is out of the power of the court to amend it in any matter affecting the merits." Compare McCandless v.Conley, 115 Ga. 48 (41 S.E. 256); Latimer v. Sweat,125 Ga. 475 (2), 477 (54 S.E. 673); Miraglia v. Bryson,152 Ga. 828 (111 S.E. 655); Frazier v. Beasley, 59 Ga. App. 500 (1 S.E.2d 458). No matter how praiseworthy the motive of the judge of Treutlen superior court in desiring to correct an error in the judgment as entered, we are compelled to hold that he erred in so doing, and that the judge of Fulton superior court did not err in ruling that effect should be given to the original decree, and not the amendment.

Judgment affirmed. All the Justices concur.