Summary
In Wiggins v. Union Trust Company, 266 Ill. App. 560, we said: `The office of an order nunc pro tunc is only to supply omission in the record of an order which was really made but omitted from the record.
Summary of this case from Gill v. GillOpinion
Opinion filed June 9, 1932.
1. APPEAL AND ERROR — when order sustaining demurrer not reviewable. An order sustaining a demurrer and adjudging costs but not barring the action is not a final judgment which may be reviewed upon appeal or writ of error.
2. JUDGMENTS — when order nunc pro tunc is proper. The office of an order nunc pro tunc is only to supply some omission in the record of an order which was really made but omitted from the record; an order may not be created by such method.
3. JUDGMENTS — necessity of memorial paper or minute for nunc pro tunc order. The fact that the court actually rendered a judgment at a previous term such as is sought to be entered of record nunc pro tunc can only be proved by some memorial paper or minute in the case made at such former term.
4. JUDGMENTS — what insufficient basis for nunc pro tunc order. A court is without jurisdiction to make a nunc pro tunc order amending a judgment sustaining a demurrer to plaintiff's declaration so as to bar the action where the only evidence offered in support of the motion to amend is an entry in the judge's docket, "Nov. 3rd, 1931, demurrer to declaration sustained. Plaintiff excepts. Judgment vs. pltf for costs," and the original judgment as expanded by the clerk, neither of which shows that an original judgment in bar of the action was entered at the former term.
Error by plaintiff to the City Court of East St. Louis; the Hon. WILLIAM F. BORDERS, Judge, presiding. Heard in this court at the February term, 1932. Writ dismissed. Opinion filed June 9, 1932.
POPE DRIEMEYER, for plaintiff in error.
ELMER WEIHL and BEASLEY ZULLEY, for defendant in error.
The trial court entered a judgment sustaining a demurrer to the declaration and adjudging that plaintiff in error pay the costs for which an execution should issue. A writ of error was sued out and defendant in error moved for a dismissal of the writ on the ground that there was no final judgment. Plaintiff in error then procured a nunc pro tunc order purporting to amend the judgment by making it a judgment in bar of the action and for costs. Defendant in error insists that the court was without jurisdiction to make the alleged amendment at a subsequent term of court because there was no memorial paper or minute made at the term at which the judgment was rendered which showed that the court, in fact, had rendered judgment in bar of the action.
The original judgment set out in the record is not a final judgment which may be reviewed upon appeal or writ of error. An order sustaining a demurrer, although it adjudges costs, is not a final judgment. Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill. 200; People v. Board of Education, 236 Ill. 154; Williams v. Huey, 263 Ill. 275.
The original judgment as expanded by the clerk simply sustained the demurrer and ordered that defendant in error do have and recover of and from plaintiff in error its costs and charges in this behalf expended and that it have execution therefor. The court at a subsequent term amended that judgment nunc pro tunc so as to make it a judgment in bar of the action and for costs. If, at the former term, the court actually rendered such a judgment and that fact was proven by some memorial paper or minute in the case made at such former term, then the amendment would be proper. But a court has no right to enter a judgment nunc pro tunc unless the judgment was in fact rendered at a previous term and was not entered of record through some fault, neglect or oversight; and in such case the fact that the court did give judgment at the previous term can only be proved by some memorial paper or minute in the case made at such former term. Stein v. Meyers, 253 Ill. 199.
The office of an order nunc pro tunc is only to supply some omission in the record of an order which was really made but omitted from the record. If an order is actually made by the court but there is a failure to enter it, the court may correct the mistake in failing to enter the order, and make the record show the order which the court actually made as of the time it was made. No court has a right to create an order by that method or to supply an order which was never in fact made. A nunc pro tunc order cannot be made to supply an omission to make an order, but only an omission in the record of the order. Lindauer v. Pease, 192 Ill. 456; People v. Rosenwald, 266 Ill. 548 -554.
The only evidence offered in support of the motion to amend the judgment was the original judgment as expanded by the clerk and the following from the judge's docket: "Nov. 3rd, 1931, demurrer to declaration sustained. Plaintiff excepts. Judgment vs. pltf for costs." There is nothing in the original judgment as expanded to indicate it was intended as a judgment in bar of the action. Does the expression in the judge's docket "judgment vs. pltf for costs" show that the court, in fact, rendered judgment in bar of the action which the clerk failed to enter a record? We do not think so. The question is not whether the court could or should have entered such a judgment in the first instance. The real question is whether the court actually entered such a judgment at the former term. People v. Wilmot, 254 Ill. 554-558. Having failed to render a judgment in bar of the action at the former term the court was without jurisdiction, at a subsequent term, to make the amendment by a nunc pro tunc order. The writ of error is dismissed.
Writ dismissed.