Fox v. Hale & Norcross Silver Mining Co.

Harrison, J. This appeal is taken by the executors of W. S. Hobart, deceased, and involves the same questions which were presented upon the appeal of Hayward et al. in the same action, No. 15301, recently decided. The cause was tried and finally submitted to the court for its decision May 3, 1892, and on the 26th of May the court filed a written opinion announcing its conclusions, and directing counsel to prepare findings and a decree in accordance with said opinion. Hobart died June 2, 1892, and upon proper proceedings therefor the appellants, Cross and Bridge, who had been appointed the executors of his last will and testament, were made parties defendant in the place and stead of Hobart, and thereafter, upon proper notice to them, the court, on motion of the plaintiff, ordered its findings and a judgment thereon to be entered against Hobart nunc pro tunc, as of the twenty-sixth day of May, 1892. From the judgment thus entered the executors have appealed, and urge in support of their appeal that, inasmuch as the court had not made its decision prior to his death, the action against him had abated, and the court was not authorized to enter a judgment nunc pro tunc, as of a date anterior to his death.

The authority of a court to order its judgment to be entered nunc pro tune is inherent in' the court, and is to be exercised for the purpose of doing justice between the parties. A court will always exercise this authority when it is apparent that the delay in rendering the judgment, or a failure to enter it after its rendition, is the result of some act or delay of the court, and is not owing to any fault of the party making the application. One class of the cases in which this authority may be exercised, says Mr. Freeman, comprises those “ actions in which no judgments have ever been rendered, but which are, so far as the suitors can make them, in condition for the rendition of final judgments.” (Freeman [481]on Judgments, sec. 57.) “The rule established by the-general concurrence of the American and English courts. is that, where the delay in rendering a judgment'or a decree arises from the act of the court—that is, where-the delay has been caused either for its convenience, or by the multiplicity or press of business, through the-intricacy of the questions involved, or of any other cause not attributable to the laches of the parties—the judgment or the decree may be entered retrospectively as of a time when it should or might have been entered up. In such cases, upon the maxim Actus curies neminem gravabit—which has been well said to be founded in right and good sense, and to afford a safe and certain guide for the administration of justice—it is the duty of the court to see that the party shall not suffer by the delay. A nunc pro tunc order should be granted or refused as justice may require in view of the circumstances of the particular case.” (Mitchell v. Overman, 103 U. S. 62. See, also, Blaisdell v. Harris, 52 N. H. 191.) Whether the decision of the court is to be expressed in the form of findings of fact or in the form of a judgment, or both, is immaterial. The principle upon which its action is to be sustained is that justice may be done between the parties. If the cause has been tried and finally submitted to the court for its judgment, the rights of the parties are to be determined as they existed at the time of such submission, and neither party is to be prejudiced by the delay of the court in rendering its judgment. In Campbell v. Mesier, 4 Johns. Ch. 342, 8 Am. Dec. 570, the cause had been submitted to the chancellor upon proofs taken before the master,, and after argument, but before decision, one of the defendants died. The chancellor ordered the decree, to have relation back, and to be entered as of the date-when the cause was finally heard. If, as is provided by sections 632 and 633 of the Code of Civil Procedure, the-making and filing of findings of fact is essential to its-decision, the court has the same authority to order these-findings to be filed nunc pro tunc as it has to order the-