Fawcett v. Weaver , 121 Fla. 245 ( 1935 )

I concur in the judgment of affirmance, but not in all the statements made in the opinion.

Strictly speaking, the doctrine of the entry of judgments nuncpro tunc does not apply in this case. There was no motion made for the entry of such a judgment, nor did the judgment which was rendered state that it was entered nunc pro tunc. The judgment as rendered on Nov. 16, 1934, correctly recites the verdict rendered on May 3, 1934, and then proceeds with the usual and proper form of judgment appropriate to such a verdict.

The sole question presented is whether the Circuit Court has power, at a succeeding term, to render judgment in a cause in which there had been a verdict rendered and motion for new trial denied during a preceding term.

The theory underlying nunc pro tunc judgments is that the judgment was in fact rendered at the appropriate time, but that by inadvertence or clerical error was not entered of record, and that this failure can be cured at a subsequent term by the rendition of a judgment nunc pro tunc. The rendition of a judgment is a judicial act; the entry of it is ministerial. There is no such condition here, nor does the record show, that any judgment had been pronounced or rendered at the preceding term. So, the question is whether the court can, during the term succeeding the trial and verdict, render and enter a judgment on the verdict. In this case there was a motion for a new trial, but it was interposed and denied during the term at which the verdict was rendered.

In many states there are statutes requiring the entry of judgments during the term or within a certain definite period after the trial and verdict. We have no such statutes. In some states it is held that a judgment cannot be rendered at a succeeding term unless the rendition of the judgment is carried over by a proper record entry. This doctrine is by no means universal, and where it is not recognized, judgments may be entered at a term of court subsequent to that in which the trial was held. 15 R.C.L. 610-611; 34 C.J. 65-66. Where a judgment is entered nunc pro tunc, it relates back to the time when it should have been entered, but in a case like this, where the judgment proper is not rendered and entered until the succeeding term, it is an original judgment and takes effect as of the date of its entry; it does not become operative until rendered and entered. The case of Fla. Development Co. v. Polk County National Bank,76 Fla. 629, 80 So. 2d 560, involved an amendment nunc pro tunc of a prior judgment made upon motion filed. However, it was said in that case that:

"Where there had been delay in entering a judgment and such delay was not caused by the laches or negligence of the party entitled to the judgment, but by the error or misprision of the court or its clerk, an entry nunc pro tunc of the judgment will be made, the interest of third parties not being affected and justice requires the entry to be made."

In the case of Ellis v. State, 100 Fla. 27, 129 So. 2d 106, we have, at least impliedly, held that an incomplete or defective judgment may be rendered complete by the entry of a proper judgment at a subsequent term. In that case, the petition in certiorari sought to have quashed a purported judgment which imposed a fine upon petitioner, and in default thereof imprisonment in the county jail for three months, but which contained no adjudication of the petitioner's guilt. The judgment of the Circuit Court affirming the judgment of the Court of Crimes in that case was quashed, but with leave to the Circuit Court to remand the cause to the Court of Crimes for the entry of a proper judgment. In that case it was said:

"This rule was followed in Pittsburgh Steel Co. v. Streety,60 Fla. 183, 53 So.2d R. 505, wherein this Court said: `A judgment in an action at law is rendered when it is entered or recorded in the minutes of the court during term time or when in vacation it is put in form for such entry or record and is signed by the judge.' This cause also recognizes the power of the court in proper cases to have judgments entered nunc pro tunc, but holds that an appeal from an unentered judgment taken prior to suchnunc pro tunc entry is ineffectual. Of course, where no judgment is in fact pronounced or rendered, at the close of a hearing or trial, the case remains unfinished on the docket until the judgment is later rendered and entered unless the court has lost jurisdiction of the case. Such a judgment, when entered, is not the entry nunc pro tunc of a judgment previously rendered but not entered of record; it is the entry of a judgment that had not theretofore been rendered — a new and original judgment."

The Supreme Court of Alabama has, in my opinion, stated the proper doctrine, to the effect that where a cause is tried, but no final judgment rendered, the cause remains in fieri and a final judgment may be rendered at a subsequent term. In the case of Campbell v. Beyers, 189 Ala. 307, 66 So. 2d 651, it was held that where in ejectment a verdict for plaintiff is duly rendered, but no judgment is entered, a judgment may properly be entered at a subsequent term, it appearing that at the term during which the verdict was rendered motion for new trial had been made and overruled. There is a recent pronouncement by the Alabama Court on this same subject in exparte French, 226 Ala. 297, 147 So. 2d 631, where it was said:

"The contention of petitioner would probably be well supported if the court had rendered a final judgment, and the motion were to set it aside, and the motion had not been continued into the next term. But the court may amend a judgment nunc pro tunc on record evidence, at a subsequent term, or, if no final judgment has been rendered, the cause is in fieri, and a final judgment may of course be rendered at a subsequent term. This legal status was thus fully explained in the case of Campbell v. Beyers,189 Ala. 307, 66 So. 2d 651; Clinton v. State, 96 Ala. 111, 11 So. 2d 299, and applied by us in Birmingham v. Andrews, 222 Ala. 362,132 So. 2d 877."

In other words, after this case had been tried and verdict rendered, a motion for new trial made and denied, but no judgment rendered, the case still remains pending, in fieri, on the docket of the court, and was not disposed of until the appropriate judgment was rendered and entered at the succeeding term. While I do not regard this an a nunc pro tunc judgment, I do not think the court had lost jurisdiction of the case, and as the case remained on its docket undisposed of until this judgment was rendered, such judgment was a valid judgment as against the attack here made upon it.

I think, therefore, that it should be affirmed.

DAVIS, J., concurs.