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O'dell v. Dowd

OPINION FILED DECEMBER 1, 1981.

KAREN O'DELL, ADM'R OF THE ESTATE OF BRIAN SCOTT WILLIAMS, DECEASED, PLAINTIFF-APPELLANT,

v.

RANDY J. DOWD, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Macon County; the Hon. JERRY L. PATTON, Judge, presiding.

JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Can a nunc pro tunc order changing a final judgment be entered where there is no supporting data in the court record or file in the case?

No.

Nov. 13, 1978 — Following an automobile accident, defendant-driver was issued two traffic citations.

Feb. 5, 1979 — Defendant pleads guilty to driving too fast for conditions in cause No. 78-TR-5912.

Apr. 21, 1981 — the Feb. 5, 1979, order in No. 78-TR-5912 corrected nunc pro tunc to show charge of driving too fast for conditions dismissed.

Apr. 22, 1981 — Plaintiff precluded from using defendant's Feb. 5, 1979, conviction at a jury trial.

Apr. 23, 1981 — Jury verdict for defendant.

We reverse and remand for a new trial.

NUNC PRO TUNC ORDER

Plaintiff, Karen O'Dell, as administrator of the estate of her deceased son, Brian Scott Williams, filed a wrongful death suit charging defendant Randy Dowd with negligence. Plaintiff's son, Brian, was killed while riding as a passenger in a truck driven by Dowd. Prior to trial, the court granted a motion in limine precluding plaintiff from introducing a certified copy of a conviction showing that on February 5, 1979, defendant pleaded guilty in cause No. 78-TR-5912 to driving too fast for conditions in connection with the incident in question.

On the day before trial in this cause, defendant obtained a nunc pro tunc order in the original traffic case, No. 78-TR-5912, purporting to correct a clerical error. According to the order entered nunc pro tunc, defendant pleaded guilty to driving while license suspended, but the charge of driving too fast for conditions was dismissed.

Plaintiff contends the trial court erred in precluding her use of a certified copy of the conviction showing that defendant pleaded guilty to driving too fast for conditions. She claims the trial court's ruling was based upon a void order of the traffic court, which was entered without jurisdiction and is subject to collateral attack. It is undisputed that the court file in No. 78-TR-5912 had earlier been destroyed and did not exist when the nunc pro tunc order was entered. The basis for the nunc pro tunc order was the affidavits of defendant, defendant's father, and the two attorneys who represented defendant in the No. 78-TR-5912 cause.

We are referred by plaintiff to People ex rel. Sweitzer v. City of Chicago (1936), 363 Ill. 409, 2 N.E.2d 330, where the court ruled a trial court was without jurisdiction to vacate a judgment after the passing of the term. That opinion states that a judgment may be amended after the term only as to matters of form and after notice to the opposite party. Such an amendment must be supported by some note, memorandum, or memorial paper remaining in the files or upon the record of the court and cannot rest upon the recollection of the judge or other persons and cannot be based upon ex parte affidavits or testimony. People ex rel. Sweitzer was followed in Fox v. Department of Revenue (1966), 34 Ill.2d 358, 215 N.E.2d 271, where an amended order — entered four months after the original order and not made from a memorandum — was held void. As the No. ...


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