Classen Construction Co. v. Fountain Lake School

[566] ORDER DAUGHERTY, Chief Judge. On September 24, 1980 the Plaintiff filed a motion to dismiss this action with prejudice. On October 3, 1980 the Court entered an order granting said motion and dismissed Plaintiff’s action with prejudice. On October 10, 1980 Plaintiff has filed an Application for Order Nunc Pro Tunc Correcting Stenographers Error in Plaintiff’s Motion to Dismiss without the supporting Brief required by the Local Rules of this Court. Defendant opposes said Application apparently desiring an award of attorney’s fees if the dismissal herein is without prejudice. Proceeding by way of nunc pro tunc does not appear to be appropriate in the circumstances of this case. The October 3, 1980 order of the Court was the order the Court precisely intended to enter. The Court made no mistake nor was there a clerical mistake committed by the Court in the Court’s entry of said order. Hence, the Court is not in position to correct its order to read what the Court intended the order to provide when it was entered and which it would have provided except for a clerical mistake of the Court. See In re Peter’s Estate, 175 Okl. 90, 51 P.2d 272 (1935); In re McQuown, 19 Okl. 347, 91 P. 689 (1907); 21 Am.Jur.2d Criminal Law § 574 (1965). Plaintiff may proceed under Rule 60(b), Federal Rules of Civil Procedure, on the ground that the October 3, 1980 order of the Court was entered by reason of a mistake, inadvertence or excusable neglect on the part of Plaintiff’s counsel. To facilitate this matter the Court will now consider said Application as being made under this Rule and will grant the same and vacate the Court order entered herein on October 3, 1980 in which Plaintiff’s action was dismissed with prejudice as it does not appear that Defendant contests the asserted mistake of Plaintiff’s counsel which resulted in the entry of an order of dismissal with prejudice. Accordingly, the order of the Court entered herein on October 3, 1980 should be vacated on motion of the Plaintiff. It is so ordered.