Moore v. Moore

193 S.E.2d 608, 229 Ga. 600, 1972 Ga. LEXIS 695

Opinions

Undercofler, Justice.

Mrs. M. Kathleen Moore filed a complaint for divorce against Walter Thomas Moore in 1965. The defendant filed his answer and cross action. On May 6, 1970, the action-was tried before a jury and a verdict was returned that same day granting Mrs. Moore a total divorce and giving her certain property. A judgment was not entered on the verdict. On June 4, 1970, Mrs. Moore filed a motion for new trial and on August 7, 1970, the trial court orally announced that it was granting a new trial to Mrs. Moore on its own motion. No written order was taken on the motion for new trial.

Mr. Moore died on April 28, 1971, before any judgment was entered on the verdict. On March 20, 1972, the attorney for Mr. Moore moved the court to enter a final decree of divorce, nunc pro tunc, and to dismiss Mrs. Moore’s motion for new trial. On April 26, 1972, an order was entered making the verdict of the jury the judgment of the court nunc pro tunc as of May 6, 1970.

The appeal is from the judgment of April 26, 1972. Held:

1. Section 16 of the Appellate Practice Act of 1965 (Ga. L. 1965, pp. 18, 30) provides: "All applications for new trial except in extraordinary cases shall be made within thirty (30) days of the entry of the judgment on the verdict, or entry of the judgment where the case was tried without a jury.” Code Ann. § 70-301. This provision of the Appellate Practice Act specifically provides that a motion for new trial shall be made after "entry of the judgment.” The motion for new trial filed in this case was made before the judgment was entered and therefore was premature and invalid. Compare Gibson v. Hodges, 221 Ga. 779 (2) (147 SE2d 329). The fact that the trial judge announced orally that he would grant the motion for new trial is no judgment. See Waller v. Waller, 226 Ga. 279 (3) (174 SE2d 433).

2. The trial court had authority to enter a divorce decree nunc pro tunc as of a date prior to the death of a party where the jury had previously returned a verdict and the cause was ripe for judgment.

"[Ejvery court has the inherent power — and it is the court’s duty — to correct its own records to make them speak the truth. Seay v. Treadwell, 43 Ga. 564; Whittle v. Jones, 198 Ga. 538 (32 SE2d 94). Where based solely on the record, and without the necessity for the introduction of extrinsic evidence, the court may, on its own motion and without notice; enter such judgment and decree nunc pro tunc at a later date; and since such entry simply perfects the record, as between the parties it relates back to the time when it should have been entered, although a different rule would apply to sureties, intervening bona fide purchasers, or innocent third parties. Code §§ 24-104 (6), 81-1201 [now repealed].” Swindell v. Swindell, 208 Ga. 727 (1) (69 SE2d 197). "Under the Civil Practice Act all judgments are signed by the judge and filed with the clerk. No time limit is given for such signing and filing. Code Ann. § 81A-158 (Ga. L. 1966, pp. 609, 662). The present record contains no facts which would prevent the entry of a judgment on the verdict of the jury at a subsequent term.” Hiscock v. Hiscock, 227 Ga. 329, 331 (180 SE2d 730).

Argued September 13, 1972 Decided October 6, 1972. Harrison, Martin, Childs, Foster & Lipscomb, Mobley F. Childs, for appellant. G. Gibson Dean, II, for appellee.

The fact that the husband died prior to the entry of the judgment nunc pro tunc would not alter the power of the court to complete and amend its records so as to make them speak the truth. Skidaway Shell Road Co. v. Brooks, 77 Ga. 136; Spencer v. Peake, 73 Ga. 803; 24 AmJur2d 547, §422; 27A CJS 626, 638, § 163.

The case of Charles v. Citizens & Southern Nat. Bank, 225 Ga. 549 (170 SE2d 243) is distinguishable from the instant case. That case involved the right of an executor to modify an alimony award. The case of Chatsworth Lumber Co. v. White, 214 Ga. 798 (107 SE2d 827) is also distinguishable from this case since the death of the party in that case occurred before the verdict was rendered.

Judgment affirmed.

All the Justices concur, except Gunter, J., who dissents.