Citizens Bank of Mammoth Spring v. Commercial National Bank of Chicago

Kirby, J., (after stating the facts). Appellant contends that the court was without jurisdiction to render the judgments. It insists that the Wood Grocery Company had no notice of the proceeding and that the judgment nunc pro tunc against it is therefore void. The attorneys who represented the Wood Grocery Company in the former litgation and A. P. Campbell, the manager of said company, now one of the owners of its ■successor, were both in court, both testified unequivocally that a judgment was in fact rendered against the Wood Grocery Company by the circuit court; that it prayed and was granted an -appeal therefrom, which was not finally perfected, because a judgment was entered against the Citizens Bank. They and the cashier of the Citizens Bank all testified that the funds garnished were paid to ■the Wood Grocery Company after the intervention of the Commercial National Bank was dismissed in the justice court and before the affidavit and bond for appeal were filed by intervener, upon the understanding that the said grocery company would reimburse the Citizens Bank and hold it harmless on account of such payment if it was compelled to pay the fund to the Commercial National Bank upon -appeal to the circuit court, and the Citizens Bank also became surety upon 'the Commercial National Bank’s appeal 'bond. Said attorney of the Wood Grocery Company and A. P. Campbell, the old manager thereof and one of the owners of its successor, were both in court and the Wood Grocery Company appeared, after the judgment nunc pro tunc was entered, by the same attorney, and moved that the judgment be vacated and set aside for want of notice. It .will .also, be seen that its attorney was. an attorney for the Citizens Bank, which alleged in its amended complaint the rendition of the judgment in fact against the Wood Grocery Company at the former term, which was entered by the court on this trial nu/nc pro tunc. (1) The correction of the record by the entry of a nunc pro tunc judgment after the expiration of the term at which the original judgment was rendered, should be made with oaiution and the purpose of requiring notice given to the person against whom the entry of the order nunc pro tunc is sought, is to give him an opportunity to be present and protect his rights. It is true no formal notice had been served of this proceeding upon the Wood Grocery Company, but the manager of the said company and its attorney, were both in court testifying that the judgment against it was in fact rendered at the former trial .and after their testimony was accepted and -acted upon by the -court and the judgment entered nunc pro tunc against it, said company appeared and moved to vacate the judgment for want of notice of the proceeding. Its motion -contained no allegation that the judgment against it was not properly rendered and suggested no reason whatever -against the -entry of it nunc pro tunc except that it was not notified -of the application therefor. Its appearance at the time this judgment was corrected, objection thereto, and motion to set aside and vacate the judgment entered nunc pro tunc was a waiver of the notice required of the proceedings to amend -the record. Simpson v. Talbot, 72 Ark. 185. (2) The court has authority at any -subsequent term to correct its record by the entry nunc pro tunc of a judgment that was rendered at a former term. Melton v. St. Louis, I. M. & S. Ry. Co., 99 Ark. 435; Liddell v. Bodenheimer, 78 Ark. 364; Bobo v. State, 40 Ark. 224; St. Louis & N. Ark. Rd. Co. v. Bratton, 93 Ark. 234; Hershy v. Baer, 45 Ark. 240. (3) The purpose of a nunc pro hone order is to make the record reflect the transaction that actually occurred and as -often announced iby this court, “The authority of the court to amend its record by a nunc pro time order is to make it speak the truth, -but not to make it speak what it 'did not speak but ought to have spoken.” Lourance v. Lankford, 106 Ark. 470. The court did not err, therefore, in amending its record by the nunc pro tunc entry of the judgment rendered at the former term against Wood Grocery Company. It is likewise undisputed that the court not only rendered, hut entered judgment against the Citizens Bank, which had no interest in the controversy except that of stake-holder, being in possession of the fund on the first trial. All of the attorneys testified that the precedent or form of judgment against the Citizens Bank was prepared by the attorney of the Commercial National Bank, which recovered the judgment in the case, wasi submitted to and approved by the attorneys of the Wood Grocery Company and then examined and approved by the court and directed to be and was entered of record. (4) The Citizens Bank, garnishee, having answered in the justice court and admitted that it held the fund garnished was liable to the payment thereof upon the court’s order and “if the garnishee desired to relieve itself of liability.in the matter, it should have paid the money into court to be delivered to whichever party the court should decide was entitled to it. ’ ’ Not having done so, it can not in this suit, by alleging that it paid the money to the plaintiff in the attachment suit before the appeal of the interpleader was taken, relieve itself of liability. Citizens Bank v. Commercial Bank, 107 Ark. 142. On the former appeal this court said that the garnishee bank was in the justice court and had notice that an appeal had been taken from the order dismissing the interplea of the Commercial National Bank, and signed its appeal bond, and it was properly in court, the appeal fey the interpleader bringing up the case as against it. The only question upon the appeal was whether the money in the hands of the garnishee was the property of the claimant or the defendant, Wood Grocery Company, and the court there said, speaking of the Citizens Banlk, which is also appellant here, “If appellant had desired to be relieved of its liability in the case, it should have paid the money into court before the appeal was taken. ” It was there held that the money garnished in the hands of the Citizens Bank was the property and money of the Commercial National Bank to the amount of $255, and that the Commercial National Bank should have judgment against said Citizens Bank in that amount, its debt, this court saying that the judgment of the circuit court might have been based upon the finding that the money was then in the hands of the appellant, that the judgment might have been erroneous, depending moon the facts before the court, but, “If erroneous, it could have been set aside on appeal, hut the validity of it can not be'attacked except on account of fraud. ’ ’ The court also said what the proper order should have been and how costs should have been adjudged, but that these were matters of error which could have 'been corrected on appeal. If the garnishee in fact paid the fund garnished over to the Wood Grocery Company before the appellee herein took an appeal from the justice judgment denying its interplea claiming to be the owner of the fund, as the testimony taken in the last trial tends to show, it is a matter as already held, that should have been presented on the former trial in the circuit court, wherein the judgment was rendered against it in favor of the intervener, the appellee herein, which judgment is conclusive, not having ■been appealed from upon that question. (5) The 'circuit court should not have set aside the judgment against the Citizens Bank, 'garnishee, and rendered another judgment against it on the finding that it had paid the fund garnished to Wood Grocery Company upon the express agreement that it was to he reimbursed by said company in case it was required to pay same to the appellee. “The entry in the record should correspond with the judgment which was actually pronounced, and the court has the power, and it is its 'duty, even at a subsequent term, to make such changes in the entry, as to make it conform to the truth. But where the judgment expresses the entire judicial action taken at the time of its rendition, the court has no authority, after the expiratiou of the term, to enlarge or to diminish it in matter of substance or in any matter affecting the merits. Under the guise of an amendment, there is no authority to revise a judgment, or to correct a judicial mistake, or to adjudicate a matter which might have been considered at the' time of the trial, or to grant an additional relief which was not in the contemplation of the court at the time the judgment was rendered.” St. Louis & North Ark. Rd. Co. v Bratton, 93 Ark. 234. No prejudice resulted from such action, however, since the same result was accomplished as if a proper order had been made refusing to set aside the said judgment. No prejudicial error is disclosed by the record and the judgment is affirmed.