[83 Ariz. 123] William C. Fields, and Wade Church, Phoenix, for petitioner.
John R. Franks, Phoenix, for respondent The Industrial Commission of Arizona, Donald J. Morgan, Robert K. Park and James D. Lester, Phoenix, of counsel.
This is a review by certiorari of an award of the Industrial Commission of Arizona denying petitioner Edna Black death benefits for the demise of Roy Lee Black. The final findings and award of the Industrial Commission confirm the fact that, as an employee of Maricopa County, Roy Lee Black suffered an injury by accident arising out of and in the course of his employment on September 29, 1955, which injury resulted in his death on October 8, 1955.
The sole question presented is whether petitioner, Edna Black, was his lawful widow. The answer to this question depends upon whether decedent was divorced from a former wife at the time of his marriage to Edna Black, and, if he was, whether a marriage contracted in Arizona within one year from the date of that divorce is valid.
On July 21, 1943 a marriage ceremony was performed in Yavapai County between Roy Black and Edna Glissman, who is the petitioner herein. In the Superior Court of Maricopa County, in a proceeding brought by Roy Black as plaintiff against Gertha Black as defendant the following decree was entered on November 9, 1955:
'This Matter came on regularly for hearing before this Court, Division #3, on the 12th day of July, 1943, and plaintiff was present in person and was represented by his counsel, Austin O'Brien. The defendant was not present. It appearing that said defendant had filed herein her written acceptance of service of a copy of the complaint and summons herein, dated May 30, 1943, and agreed that this matter might be set at the convenience of the Court without further notice to her.
'Evidence was introduced on behalf of plaintiff and the Court being advised in the premises entered the following order:
[83 Ariz. 124] "Order for decree of divorce for plaintiff against defendant.'
'Wherefore It Is Ordered, Adjudged and Decreed that the bonds of matrimony existing between the parties be and the same are hereby dissolved and plaintiff, Roy Black, is granted a decree of absolute divorce from defendant, Gertha Black.
'It Is Further Ordered and Decreed that the Clerk of this Court file this Decree Nunc Pro Tunc as of July 12, 1943.
'Done In Open Court this 9th day of November, 1955.
'Henry S. Stevens
The Industrial Commission contends that this degree of divorce could only be effective as of November 9, 1955, the date when Judge Stevens settled, approved and signed the written decree, and that the court's attempt to make the entry of the written decree effective nunc pro tunc as of July 12, 1943, is a nullity in the face of Rule 58(a) of the Rules of Civil Procedure of Arizona, 16 A.R.S. Rule 58(a) provides as follows:
'Judgment shall be entered when the court so directs. When the direction
is that a party recover only money or costs, or that all relief be denied, the clerk shall enter judgment forthwith upon receipt by him of the direction, but when the direction is for other relief, the judge shall first promptly settle and approve the form of judgment. In cases of judgments for money or costs only, or that all relief be denied, the notation thereof in the civil docket, as provided by Rule 79(a) constitutes the entry of such judgment, and in cases granting any other relief, filing with the clerk of a form of judgment approved and signed by the judge, for recording in the civil order book, as provided by Rule 79(b) constitutes entry of such judgment, and in either case the judgment is not effective before such entry. The entry of the judgment shall not be delayed for taxing costs.'
Clearly a divorce decree is a direction for 'other relief' as referred to in the rule, and cannot be effective as a judgment before filing of the signed judgment with the clerk. Cf. Harbel Oil Co. v. Steele, 81 Ariz. 104, 301 P.2d 757. Such filing cannot take place until the judge first settles and approves the form of judgment. Here the form of the judgment was settled and approved by Judge Stevens on November 9, 1955, who directed its entry nunc pro tunc as of July 12, 1943.
Petitioner contends, on the other hand, that the Industrial Commission may not collaterally attack the decree of divorce involved in this case entered on November 9, 1955 nunc pro tunc as of July 12, 1943, and quotes from 49 C.J.S. Judgments § 402, in support of his contention.
[83 Ariz. 125] In support of this quotation 49 C.J.S., supra, cites three cases in support of the proposition of law stated: Miller v. Muir, 115 Ind.App. 335, 56 N.E.2d 496; Allen v. Bagley, 234 Mo.App. 891, 133 S.W.2d 1027; and In re Cannon's Guardianship, 182 Okl. 171, 77 P.2d 64, 66. In both Allen v. Bagley and Miller v. Muir, the court said the parties attacking the judgment had the right to appeal. This they did not do and the judgment had become final. In the instant case of course not being a party to the divorce case, the Industrial Commission had no right to appeal. And in the In re Cannon's Guardianship case cited the court said that in establishing the fact that a judgment had been entered on some previous date.
'* * * The issues relating to whether he had jurisdiction of the subject-matter, or of the parties, or to render the particular judgment, are beside the point. * * * 'It is not within the purview of an order nunc pro tunc to operate ex post facto to give force to a chamber order which was void for want of jurisdiction, or to give validity to proofs taken in a chancery cause without authority of law under such void order."
In In re Cannon's Guardianship, supra, the court did say that 'orders nunc pro tunc, when made, are judgments and are treated as such, as though the entry had been made at the time,' citing 34 C.J. 82, section 222. Montgomery County v. Auchley, 103 Mo. 492, 15 S.W. 626, and Courtney v. Barnett, 65 Okl. 189, 166 P. 207 cited in 34 C.J., supra, seem to support it. See, also, 49 C.J.S. Judgments § 121. However, in the Montgomery County case, supra, both parties introduced evidence, no appeal was taken, and the court said the nunc pro tunc order became final and imported verity. In Courtney v. Barnett, supra, the trial court made findings of fact, both parties were present, no appeal was taken, and the Supreme Court of Oklahoma held the nunc pro tunc order could not be collaterally attacked.
We have consistently held that the function of an order or judgment nunc pro tunc is to make the record speak the truth and that such power is inherent in the court. We have made it clear that the court cannot do more than to make the record correspond with the actual facts. It cannot cause an order or judgment that
was never previously made or rendered to be placed upon the record of the court. It is to record now for then an order actually made or a judgment actually rendered which through some oversight or inadvertence was never entered upon the records of the court by the clerk or which was incorrectly entered. Stephens v. White, 46 Ariz. 426, 51 P.2d 921; Wood's Pharmacy, Inc., v. Kenton, 50 Ariz. 53, 68 P.2d 705.
[83 Ariz. 126] If no order has been actually made or judgment previously rendered, the court is without jurisdiction to enter such order or judgment. To do so would be in excess of its jurisdiction and therefore void. It follows that before a court has the power to enter an order or judgment nunc pro tunc in a case where the judge did not preside in the original trial that it must be shown to the satisfaction of the court, by competent evidence, that such order or judgment had been actually made or rendered on the date claimed.
The question of whether a nunc pro tunc judgment may be attacked collaterally is one of first impression in this court. After a careful consideration of the danger inherent in the improper exercise of the power of the courts to enter orders or judgment nunc pro tunc, we have reached the conclusion that if such orders or judgments are to be shielded from collateral attack, the court when directing an entry nunc pro tunc must: (1) make a record such that anyone who examines it may determine the nature of the clerical error sought to be corrected; and (2) place upon the face of the judgment or order a finding or recital to the effect that sufficient competent evidence was presented to sustain the order for entry nunc pro tunc. Under such circumstances it should not then be subject to collateral attack. Unless the judgment or the record does show such facts, it will be subject to collateral attack. Without this safeguard a judgment nunc pro tunc absolutely void for want of jurisdiction would be clothed with the same verity as a valid judgment. The law should never be thus circumscribed.
We find authority for this view. In Herman v. Ohio Finance Co., 66 Ohio App. 164, 32 N.E.2d 28, 30, 31, the court stated:
"* * * When a court exceeds its power in entering a purported nunc pro tunc judgment or order, such judgment or order is invalid.' National Life Ins. Co. v. ...