THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Western Sales Trading Co. v.
Ponape Federation of Cooperative
Associations,
6 FSM Intrm. 592 (Pohnpei 1994)
WESTERN SALES TRADING CO.,
Plaintiff,
vs.
PONAPE FEDERATION OF
COOPERATIVE ASSOCIATIONS,
Defendant.
CIVIL ACTION NO. 1991-065
ORDER
Richard H. Benson
Associate Justice
Decided: December 6, 1994
APPEARANCES:
For the
Plaintiff: Daniel J. Berman, Esq.
Rush, Moore, Craven, Sutton, Morry & Beh
2000 Hawaii Tower
745 Fort Street
Honolulu, HI 96813-3862
For the Defendant: Matt Mix, Esq.
P.O. Box 143
Kolonia, Pohnpei FM 96941
For the Competing Fredrick L. Ramp, Esq.
Judgment Creditor: P.O. Box 1480
Kolonia, Pohnpei FM 96941
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HEADNOTES
Attachment and
Execution; Debtors' and Creditors' Rights
Among execution creditors the claims of those whose writs are dated earliest have priority to an insolvent's assets over those whose writs are dated later. Individual writ-holders are to be paid on the basis of first-in-time, first-in-right rule according to the dates of their writs. Western Sales Trading Co. v. Ponape Federation of Coop. Ass'ns, 6 FSM Intrm. 592, 593 (Pon. 1994).
Civil Procedure )
Motions
A court may grant a motion nunc pro tunc to supply a
record of an action previously done but omitted from the record through
inadvertence or mistake, to have effect as of the former date. A motion
nunc pro tunc cannot be used to supply an action omitted by the court.
Western Sales
Trading Co. v. Ponape Federation of Coop. Ass'ns, 6 FSM Intrm. 592, 593-94 (Pon. 1994).
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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
A stipulated judgment in the amount of $2,000.00 was entered in this matter on June 5, 1992. The judgment remains unpaid. Plaintiff, as an unpaid judgment creditor, filed its Motion for Writ of Execution on March 9, 1994. The writ was issued on March 23, 1994. The writ was levied on the remaining property of the insolvent defendant, and the Return of the Writ indicates that $2,316.16 is on deposit with the court in the custody of the Court Administrator.
Although a competing judgment creditor's request for a writ of execution on the same defendant was filed later than the plaintiff's request in this matter, the competitor's writ of execution was issued earlier than the plaintiff's. Among execution creditors the claims of those whose writs are dated earliest have priority to an insolvent's assets over those whose writs are dated later. In re Island Hardware, Inc., 5 FSM Intrm. 170, 174 (App. 1991) (writ-holders to be paid on the basis of first-in-time, first-in-right rule according to the dates of the individual parties' writs).
Plaintiff thus filed a motion requesting that the writ of execution be modified or amended nunc pro tunc so that the date on its writ of execution would be March 9, 1994, the date on which the motion for the writ was filed. Plaintiff's memorandum argued that a judgment creditor is entitled to the immediate issuance of a writ of execution to preserve its priority rights, and that therefore the date of its writ of execution should be changed to March 9, when it could or should have been issued. For this proposition plaintiff relies on In re Pacific Islands Distributing Co., 3 FSM Intrm. 575, 582 (Pon. 1988) (statutory right of judgment creditor to immediate issuance of writ of execution, subject to rule no execution shall issue within 10 days of entry of judgment, implies writs be paid in order issued, although enforcement may be stayed).
At my request the motion was also served on the competing execution creditor's counsel, who did not file any opposition to it. Nor did the defendant file an opposition. Although "failure to file a timely opposition is deemed a consent to the granting of the motion, FSM Civ. R. 6(d), proper grounds for the granting of the motion must still exist before the court may grant it." Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994).
However, I find no authority for me to grant plaintiff's motion. I do not doubt the authority of the court to grant motions nunc pro tunc in a proper case. 4 F.S.M.C. 117. See 56 Am. Jur. 2d Motions, Rules, and Orders § 44, at 37 (1971) ("The power of courts to enter and amend orders nunc pro tunc is recognized in all jurisdictions."). This, however, is not a proper case.
"Th[e] `Latin phrase [nunc pro tunc] is merely descriptive of the inherent power of the court to make its records speak the truth) to record that which was actually done, but omitted to be recorded.'" A.B.C. Packard, Inc. v. General Motors Corp., 275 F.2d 63, 75 (9th Cir. 1960) (quoting W.F. Sebel Co. v. Hessee, 214 F.2d 459, 462 (10th Cir. 1954)).
A nunc pro tunc entry is one made now of something which was actually previously done, to have effect as of the former date. Its office is not to supply omitted action by the court but to supply an omission (on the record of an action) really had, but
omitted through inadvertence or mistake.
Seabolt v. State, 357 P.2d 1014, 1016 (Okla. Crim. App. 1960).
Because what the plaintiff asks me to supply is an omitted action of the court ) the issuance of the writ on March 9, 1994 ) and not a correction of an omission in the record, I cannot grant his motion nunc pro tunc. Therefore the plaintiff's motion is denied.
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