Sampson v. Sapoznik

DORAN, J. The present appeal involves only the power of the trial court to correct nunc pro tunc a judgment previously ordered in favor of the respondent. There is also an appeal from the judgment rendered (Civ. No. 19596), this day affirmed in a separate opinion (ante, p. 704).

Upon conclusion of the trial and the entering of a minute order in respondent’s favor, respondent’s attorneys were ordered to prepare findings which, with a proposed judgment, were transmitted to the clerk of the trial court on April 10, 1952. The proposed findings included matter relating to causes of action other than the third cause of action upon which the judgment was rendered, and consequently were not satisfactory. The proposed judgment, in addition to ordering a money judgment in favor of plaintiff, “Further ordered, adjudged and decreed that said defendants are entitled to the assets of Scarfanet Company . . . which remain in the possession of the plaintiff, consisting of office equipment and the balance of merchandise inventory.” The corporation was not a party to the litigation.

The trial judge then instructed counsel to prepare other findings and judgment, to which appellants filed objections, and the matter was thereafter discussed in chambers. A third set of findings was then presented which was duly signed by the trial court. No third draft of the judgment had been made, and in place of signing the second proposed judgment, the trial judge signed the first draft of judgment. The first and second proposed judgments were alike except that the second draft omitted the paragraph quoted above relating to assets of the Scarfanet Company. According to an affidavit of respondent’s attorney, this second judgment draft was orally approved by the trial judge at the conference in chambers.

After entry of judgment, motions for new trial were made by the appellants, which motions were denied on August 25, 1952. Thereafter, and on November 12, 1952, the respondent filed a notice of motion to correct the judgment nunc pro tunc by striking the paragraph referred to above. The motion to correct the judgment was based upon the following "grounds:

“1. Mistake of plaintiff and his legal representatives.

‘ ‘ 2. Inadvertence of plaintiff and his legal representatives.

“3. Excusable neglect of plaintiff and his legal representatives.

“4. Correction of a clerical mistake.

“5. The above referred to portion of the judgment is void.

“6. Inadvertence of the court.