Turlay v. Farmers Insurance Exchange

488 P.2d 406, 259 Or. 612, 1971 Ore. LEXIS 414

Opinions

HOWELL, J.

Plaintiff brought this action for a declaratory judgment seeking a declaration of his rights under the uninsured motorist provision of his automobile policy with the defendant. The cause was tried before the court, and a judgment was awarded to plaintiff. The defendant appealed, and plaintiff moved to dismiss the appeal on the ground that the notice of appeal was filed before entry of the judgment. We denied plaintiff’s motion to dismiss with leave, however, to plaintiff to renew the motion in the briefs and oral argument before this court.

On January 30,1970, the trial court entered a letter opinion deciding the issues in favor of plaintiff. On February 6, 1970, Findings of Fact, Conclusions of Law, and Judgment were tendered by plaintiff. On February 9, 1970, defendant tendered alternate Findings of Fact and Conclusions of Law and Objections to plaintiff’s proposed Findings of Fact and Conclusions of Law. On February 13, 1970, the trial court held a hearing on the proposed Findings of Fact and Conclusions of Law submitted by plaintiff and the Objections and alternate Findings of Fact and Conclusions of Law submitted by defendant, and signed Findings of Fact, Conclusions of Law and Judgment in favor of plaintiff. Believing that the judgment signed by the trial judge had been duly entered on the day it was signed, the defendant filed notice of appeal on March 16,1970, which was within the 30 days required by OES 19.026. Service of the notice of appeal was made on plaintiff’s counsel who advised defendant’s counsel that the notice of appeal was premature. According to defendant’s uncontroverted affidavit, the defendant then consulted the trial judge “who advised me that his clerk had not entered the order [judgment] and that he would take whatever steps were deemed necessary to correct the record.” On March 26, 1970, the court signed an order entering the judgment nunc pro tunc as of February 13, 1970.

With certain exceptions not material to this case, an appellant is required by OES 19.026 to file the notice of appeal within 30 days after the entry of the judgment appealed from. In the instant case, while the judgment was signed by the trial judge on February 13, 1970, it was not entered by the clerk until March 18, 1970, which was two days after the defendant had filed its notice of appeal. Consequently, the defendant did not comply with OES 19.026 and file the notice of appeal within 30 days after entry of the judgment.

The question then presented is whether the trial court, after defendant filed the notice of appeal, acted properly in executing a subsequent order entering the judgment nunc pro tunc as of February 13, 1970.

1. “The office of a nunc pro tunc entry is to make a record of what was previously done, but not then entered ; not to make an order now for then, but to enter now for then an order previously made.” Klein v. Southern Pacific Co., 140 F 213 (CC Or 1905). It is the purpose of a nunc pro tunc order to supply an omis sion in the record of action really had, but omitted through inadvertence or mistake, or to enter an order ■which should have been made as a matter of course and as a legal duty. Cranston v. Stanfield et al, 123 Or 314, 319, 261 P 52 (1927).

While there is authority that the statutory period for appeals cannot be shortened or lengthened by the parties or by a nunc pro tunc order of the court,① some of the cases so holding involved situations where a judgment had never been rendered② or where the effect of the order is to shorten the statutory time for appeal.③

In the instant case, however, the trial judge actually rendered his judgment on February 13, 1970. He had before him the plaintiff’s proposed findings, defendant’s objections and alternate findings, and heard the arguments of counsel before signing the judgment.

All that remained was for the clerk to enter the judgment. The entry of the judgment under these circumstances is a purely ministerial act. Jones v. Thompson, 177 Or 650, 654, 164 P2d 718 (1945).

2. It is true, as the plaintiff argues, that the defendant could have re-filed the notice of appeal and the bond and the designation of record after the judgment was entered on March 18, 1970. However, we believe that the trial court acted properly in executing the order directing the judgment to be entered nunc pro tunc as of February 13, 1970, the date the court rendered the judgment. “When a judgment has been rendered or order made and the clerk has failed or neglected to enter it of record, the court has the power to thereafter order the judgment or order so rendered or made to be entered nunc pro tune * * Quartz Gold Mining Co. v. Patterson, 53 Or 85, 96 P 551 (1909). See also Davis v. Bar T Cattle Co., 247 Or 437, 431 P2d 825 (1967); Haberly v. Farmers’ Mut. Fire Rel. Ass’n, 135 Or 32, 287 P 222, 293 P 590, 294 P 594 (1930); City of Portland v. Blue, 87 Or 271, 170 P 715 (1918); Grover v. Hawthorne, 62 Or 65, 75, 116 P 100, 121 P 804 (1912); 1 Freeman, Judgments 231, § 126 (5th ed 1925).

The motion to dismiss is denied.

Footnotes

①

Freeman on Judgments states as follows:

“* « * [Wlhere actual entry of judgment is an essential prerequisite to an appeal or the time for appeal dates from the entry, an entry nunc pro tunc cannot validate a premature appeal nor cut off the right to appeal.” 1 Freeman, Judgments 264, § 139 (5th ed 1925).

See also United States v. Rayburn, 91 F2d 162, 164 (8th Cir 1937).

②

See Ballard v. Hopkins, 142 So2d 738 (Fla App 1962); Hampshire Arms Hotel Co. v. Wells, 210 Minn 286, 298 NW 452 (1941); Martin v. Smith, 11 SD 437, 78 NW 1001 (1899).

③

Skinner v. City of El Dorado, 248 Ark 916, 454 SW2d 656 (Ark 1970); Stupp v. Cone Brothers Contracting Co., 135 So2d 457 (CA Fla 1961); Stark v. Heart River Irrig. Dist., 78 ND 302, 49 NW2d 217 (1951).