McCullough v. Safeway Stores, Inc.
McCullough v. Safeway Stores, Inc.
Opinion of the Court
This cause is before us on reconsideration of dismissal motion. When initially entertained, the motion culminated in the November 3, 1980 dismissal. It was later set aside by order of December 27, 1980. The dispositive question — which unfolded itself at the time we set aside the dismissal — is whether the parties were in fact given timely notice of the trial court’s February 20, 1979 in absentia ruling on the defendant’s motion for summary judgment. As an aid to us in resolving this issue we asked that the trial judge, sitting as this court’s special master, give it his initial consideration. We now have a memorial of his views.
Defendant’s motion for summary judgment, filed November 13, 1978, came for trial court’s consideration on the briefs. A courtroom minute sheet of February 20, 1979, reflects that on that day summary
Viewed in its totality, the record is unim-peachably consistent with the plaintiff’s position that no timely notice was ever given her. There exists in this record absolutely no trail of any mailing. The appearance docket bears no entry indicating any kind of notice mailing; the original courtroom minute sheet shows no judicial direction for the copies to be mailed; counsel are both in agreement that they had no notice of the ruling before about April 14 or 15; lastly and most importantly, there is no testimony in this record from the deputy court clerk— the one who was charged with making, and did make, the February 20th minute entry — to the effect that either she, or someone else under her direction or to her knowledge, ever mailed the notice to the parties at some point in time after the February 20th ruling.
In a case taken under advisement, the parties to an action who appeared therein and who are affected by an appeal-able decision made in their absence at a time not regularly appointed either for trial or pronouncement of judgment must be given timely notice of the court’s decision.
This court makes the ultimate determination with respect to the state and contents of an appellate record. While it may avail itself of the trial judge’s aid by directing him/her to act in the matter as its special master, it is not necessarily bound by the master’s view or findings.
On the record before us we hold that no timely notice was given to the par
. Liberty Plan Co. v. Francis T. Smith Lumber Co., Okl., 360 P.2d 500 [1961].
. Amendments V and XIV, U.S. Con.; Art. 2 § 7, Okl.Con.; Boorigie v. Boyd, 41 Okl. 550, 139 P. 253 [1914].
. Boorigie v. Boyd, supra note 2; Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 [1965]; cf. Thomas v. Darks, 127 Okl. 179, 260 P. 75, 77 [1927].
. Parker v. Rennie, 136 Okl. 122, 276 P. 721, 722 [1929].
. Render v. Henry Schafer, Inc., 198 Okl. 95, 175 P.2d 330, 331 [1946]; Little v. Employer’s Casualty Co., 180 Okl. 628, 71 P.2d 687, 688 [1937].
. Marker v. Gillam, 80 Okl. 259, 196 P. 126 [1921]; Woodmansee v. Woodmansee, 137 Okl. 112, 278 P. 278 [1929].
. Werfelman v. Miller, 180 Okl. 267, 68 P.2d 819, 820 [1937]; Embry v. Villines, 175 Okl. 552, 53 P.2d 277, 280 [1935]; Greer v. West, 173 Okl. 427, 48 P.2d 1043, 1046 [1935].
. A minute entry of a rendered judgment is to be distinguished from “record entry of judgment”. The latter is not effected by a clerk’s minute entry on the appearance docket. Rather, it is accomplished by a written memorial —most often made nunc pro tunc — which is filed in the case and entered on the court’s journal. The memorial’s entry upon the journal is not essential to the validity of a judgment. Cumby v. State ex rel. Vinzant, Okl., 468 P.2d 490, 493 [1970]; Austin v. King, Okl., 404 P.2d 1009, 1014 [1965]; State v. Froese, 200 Okl. 486, 197 P.2d 296, 298 [1948]. In this case the court’s judgment has not yet been “entered” of record because there is still no formal nunc pro tunc memorial of its record.
Concurring in Part
concurring specially in part; dissenting in part.
I must respectfully disagree with the action of the majority in involving the office of an “order nunc pro tunc” to change the date of entry of a trial court judgment. Such action is not authorized,
There can be no doubt from an examination of the record and exhibits that the trial judge entered his judgment in this case on February 20, 1979. The entry of judgment is nothing more than a ministerial act which consists in spreading upon the record a statement of the final conclusion by the trial judge in the matter. Entry of judgment is not to be confused with “rendition of judgment” or “pronouncement of judgment”.
Rendition or pronouncement of judgment within the parameters of this litigation is accomplished only after the court’s decision is announced to both parties. Bobo v. Bigbee, Okl., 548 P.2d 244 (1976).
The time to commence an appeal does not begin to run from the simple ministerial act of entry of judgment but is calculated from the “day the decision is rendered.” (E.A.) Rules of Appellate Procedure, 12 O.S.1971, Ch. 15, App. 2, Rule 1.11(a). Pursuant to Rule 1.11(b), a judgment is deemed rendered when its terms are pronounced by the judge.
Although the judgment in this case was entered February 20, it clearly was not “rendered” nor “pronounced” within the meaning of our Appellate Rules until it was communicated to the parties on April 13.
I would simply hold the petition in error filed was timely filed May 10, 1979.
. This Court has no power to correct the record of another court. “If the correction of the record of the trial court is by nunc pro tunc order to correct a matter of record in the trial court only, or not of record in the trial court, the trial judge has exclusive jurisdiction to make that correction.” Werfelman v. Miller, 180 Okl. 267, 68 P.2d 819, 820 (1937). See also, Oklahoma Fire Ins. Co. v. Kimpel, 39 Okl. 339, 135 P. 6 (1913); Bettis v. Cargile, 23 Okl. 301, 100 P. 436 (1909).
Reference
- Full Case Name
- Leta Faye McCULLOUGH, Appellant, v. SAFEWAY STORES, INC., a Maryland Corporation, Appellee
- Cited By
- 68 cases
- Status
- Published