APPEAL from the Circuit Court of La Salle County; the Hon.
FRED WAGNER, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
The defendants-counterplaintiffs (the Hollands) appeal from a judgment of the Circuit Court of La Salle County, by the terms of which the trial court dismissed, at the close of proofs on behalf of the Hollands, the claim of the Hollands that they be found as owners by adverse possession of a certain strip of land in dispute as between the parties.
Plaintiffs in the action in the instant case, Roger and Sandra Harbeck, are owners of record of a farm in La Salle County. The defendants, Daniel Holland, Jr., and his sons, Dennis Holland and Douglas Holland, are tenants of the land owned by Daniel Holland, Jr.'s mother, Ethel Holland. This land is contiguous to, and directly to the south of, the Harbeck property.
The Harbecks filed a complaint in the circuit court, asking the court to find that Daniel, Dennis and Douglas Holland were trespassing upon the land of the Harbecks, by use by the named Hollands as a driveway and crop land. The strip in question was some 20 feet by 2400 feet located at the extreme south of the Harbeck property and contiguous to the extreme north end of the Holland farm. The Harbecks sought damages and injunctive relief to prevent continuation of the asserted trespass. Daniel, Dennis and Douglas Holland disputed the accuracy of the Harbeck survey. They also joined Ethel Holland, record owner of the southern farm, and counterclaimed that Mrs. Holland was the owner of the disputed strip by adverse possession. The Hollands also asked for damages and injunctive relief. Since equitable relief was prayed for, the cause was tried in a bench trial.
On February 22, 1977, at the close of proofs on behalf of the defendants-counterplaintiffs, Hollands, the plaintiffs-counterdefendants, Harbecks, moved for a judgment under the terms of section 64(3) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 64(3)). On June 7, 1977, an order was entered in this cause by the trial court in the following terms:
"Ordered, that defendant's motion for a judgment for the Defendant at the close of the Plaintiff's case be and is hereby allowed. [Sic.]"
On August 7, 1978, plaintiffs-counterdefendants moved to have the order amended, nunc pro tunc, so as to substitute the word "counter-defendants" for the word "defendant" and to substitute the word "counterplaintiffs" for the word "plaintiff". The judge apparently determined that he could not issue a nunc pro tunc order for the reason that he had no memorandum of his real intentions. The trial court, instead, issued a new order, effective as of August 10, 1978, vacating the order of June 7 and substituting an order that "counter-defendants' motion for a judgment for the counterdefendant at the close of counter-plaintiff's case be and is hereby allowed. [Sic.]" The defendants-counterplaintiffs, Hollands, appeal from the order of August 10, 1978, asking the court to vacate that order and reinstate the June 7 order.
The Hollands contend that the order of June 7, 1978, should stand because the court lost jurisdiction to amend its judgment after the expiration of 30 days. As stated in Spears v. Spears (1977), 52 Ill. App.3d 695, 697, 367 N.E.2d 1004:
"Generally, a trial court does not have jurisdiction over either the parties or the subject matter so as to permit it to review or modify its own final order or judgment after the expiration of 30 days from rendition, except pursuant to a petition for post-judgment relief under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72)."
There is no showing that an adequate section 72 petition was submitted to the court by the Harbecks.
1 It is unquestionable, as noted in Morrison v. Stewart (1887), 21 Ill. App. 113, 114, that a trial court, even after the expiration of its term, may amend its order nunc pro tunc. Such amended order relates back to the date of the original order, which was issued during the court's term. An order may be amended nunc pro tunc in order to rectify a clerical error or an error of form. (Fox v. Department of Revenue (1966), 34 Ill.2d 358, 359, 215 N.E.2d 271.) "Clerical errors or matters of form are those errors, mistakes or omissions which are not the result of the judicial function. Mistakes of the court are not necessarily judicial errors. The distinction between a clerical error and a judicial one does not depend so much upon the source of the error as upon whether it was the deliberate result of judicial reasoning and determination." (Dauderman v. Dauderman (1970), 130 Ill. App.2d 807, 810, 263 N.E.2d 708.) A judge may not amend his judgment nunc pro tunc on the basis of memory alone, but must rely upon either a memorandum or otherwise upon a definite and certain record. (Fox v. Department of Revenue (1966), 34 Ill.2d 358, 359, 215 N.E.2d 271; Dauderman v. Dauderman (1970), 130 Ill. App.2d 807, 810, 263 N.E.2d 708.) The record in the instant case indicates that the designation in the original order of "defendant," rather than "counterdefendants," and of "plaintiff," rather than "counterplaintiffs," was a clerical error. The judge, in amending his order, was not correcting an error of deliberate judicial reasoning and determination, but was merely correcting an inadvertent misdesignation of the parties. That it was a clerical error was clear from the context and the nature of the order itself. The error was understandable, in view of the fact that a section 64(3) motion was made by counterdefendants for judgment at the end of counterplaintiffs' proofs.
The factual deviation in this case from the norm, i.e., that the motion was made by the counterdefendants at the close of counterplaintiffs' proofs, easily explains the source of the error inadvertently entered by the trial court.
2 We conclude that the judge was overly cautious in his determination that there was an insufficient memorandum to support an amendment nunc pro tunc. The minute order of February 22, 1977, indicates that the "plaintiff" moved for judgment after the "defendant-counterplaintiff" rested, and that the judge then recessed proceedings so that the parties could file briefs. No other motion was indicated in the record. On the basis of the record as a whole, therefore, we believe that there was sufficient written basis for the judge to have made his amendment of the clerical error nunc pro tunc.
It is apparent, also, that the court had jurisdiction to vacate the June 7 order and issue a new order on August 10, 1978, since both parties had made a general appearance before the court and the court was revested with jurisdiction over the parties, even after the expiration of the term following the passage of 30 days after its initial order. (Ridgely v. Central Pipe Line Co. (1951), 409 Ill. 46, 49-50, 97 N.E.2d 817.) When the Harbecks appeared on August 10 at a hearing on their motion for an amendment nunc pro tunc, the Hollands also appeared before the court. The Hollands did not, at that time, challenge the court's jurisdiction. The appearance was ...