Hess v. Gross

California Court of Appeal Jan 7, 1943 No. Civ. 2985Published

Before: Barnard

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Holding. A trial court has the inherent power to enter a nunc pro tunc order to correct its records to reflect the truth, and such an order is binding upon a surety who signed an undertaking to stay execution, even if the record did not initially reflect the order fixing the bond amount.

Issues

Whether a trial court has the power to enter a nunc pro tunc order to fix the amount of a stay bond when the original record failed to reflect that such an order was made.
Whether a nunc pro tunc order correcting the record to show a bond was fixed is binding upon a surety who claims lack of consideration due to the initial absence of the order in the record.

Disposition. reversed

Quotations verified verbatim against the opinion

“All courts have the inherent power to correct their records so they shall conform to the facts and speak the truth”

“The usual rules permitting a record to be so changed as to make it speak the truth and show the actual facts are applicable here and these rules apply to and bind this respondent as well as the parties to the original action.”

“This respondent’s status as a surety was fixed by the actual facts as they existed and his liability is in no way increased by the mere correction of the record to show those facts.”

BARNARD, P. J.

This is an action against the sureties on an undertaking staying execution pending an appeal from a judgment for the delivery of the possession of real property.

In a former action against one Moodey this plaintiff recovered judgment, from which Moodey appealed on April 11, 1938. On April 20, 1938, an undertaking in the amount of $3,000 was filed for the purpose of staying execution of said judgment, which was signed by these defendants and which covered the commission of any waste upon the property and the value of the use and occupation thereof, in the event the judgment should be affirmed. On January 8, 1940, that judgment was affirmed.

The present action was commenced on December 10,1940. An answer was filed by the defendant Endicott, but the other defendant did not appear. During the trial of this action it developed that the files of the former action did not contain any order fixing the amount of a bond for the purpose of staying execution of that judgment. Thereupon, there was filed in the former action under date of December 6, 1941, a

nunc pro tunc

order signed by the judge who tried that action in which it was recited that an order had been issued in that action on April 25, 1938, restraining the plaintiff from occupying the property described in the complaint pending the determination of the appeal from the judgment, that before the issuance of said restraining order and on April 16, 1938, the court had ordered the amount of the undertaking to stay execution of the judgment fixed at $3,000, that the records in said action did not show that such order fixing the undertaking was made, and that, in order to correct said records and make them speak the truth, it was thereby ordered that the amount of the undertaking staying the execution of the judgment pending the appeal be fixed at $3,000 as of April 16, 1938, and that the clerk was directed to make a minute order accordingly. A copy of this

nunc pro tunc

order was introduced in evidence in the present action. While the court found that the plaintiff had been damaged in the sum of $1,800 by reason of the facts set forth in the complaint it further found that the signing of the undertaking in question was without consideration

[531]

Hess v. Gross

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BARNARD, P. J.

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