THE POWER OF NOW FOR THEN
September 28, 2011 § Leave a comment
Unlike mere mortals, chancellors have the power to reach back into the past and take action as effectively as if had actually been done back then. It’s called nunc pro tunc — Latin for now for then — and here is how it works:
“This Court has stated that ‘[n]unc pro tunc signifies now for then, or in other words, a thing is done now, which shall have [the] same legal force and effect as if done at [the] time when it ought to have been done.’ In re D.N.T., 843 So. 2d 690, 697 n.8 (Miss. 2003) (quoting Black’s Law Dictionary 964 (5th ed. 1979)) (emphasis added). This Court has further articulated that
[n]unc pro tunc means ‘now for then’ and when applied to the entry of a legal order or judgment it does not refer to a new or fresh (de novo) decision, as when a decision is made after the death of a party, but relates to a ruling or action actually previously made or done but concerning which for some reason the record thereof is defective or omitted. The later record making does not itself have a retroactive effect but it constitutes the later evidence of a prior effectual act.
Thrash v. Thrash, 385 So. 2d 961, 963-64 (Miss. 1980) (emphasis added).”
The above language is from the MSSC decision in Irving v. Irving, decided August 18, 2011.
We’ve talked here before about Henderson v. Henderson, another nunc pro tunc case that reached back two years to effectuate a divorce judgment that had erroneously never been entered with the clerk.
Years ago I tried a consent divorce case in Wayne County involving only property issues between an elderly husband and wife. Chancellor Shannon Clark rendered an opinion from the bench at the conclusion of trial and directed me to draft the judgment, which I did the next day and mailed to counsel opposite in Waynesboro. Before the other attorney could approve the judgment and return it to me, my client suddenly died. Judge Clark later signed a judgment nunc pro tunc, and the other side appealed. In White v. Smith, Admrx of Estate of White, 645 So.2d 875, 882 (Miss. 1994), the MSSC upheld the trial judge’s action, quoting a Florida case that held, ” … recordation of a final decree is a procedural and ministerial act, that a decree when recorded is but evidence of judicial action already taken and that a failure to perform the act of recording may be remedied by an order nunc pro tunc.”
I’ll leave it to you to conjure up some situations in which you can ask the chancellor to act now for then to pull your irons out of the fire.