Western Sales Trading Co v Ponape Federation Cooperative Associations [1994] FMSC 44; 6 FSM Intrm. 592 (Pon. 1994) (6 December 1994)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Western Sales Trading Co. v Ponape Federation of Cooperative Associations, [1994] FMSC 44; 6 FSM Intrm. 592 (Pon. 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 Judgment Creditor:
Fredrick L. Ramp, Esq.
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, [1994] FMSC 44; 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, [1994] FMSC 44; 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.[1991] FMSC 23; , 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.[1988] FMSC 31; , 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., [1994] FMSC 20; 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., [1960] USCA9 24; 275 F.2d 63, 75 (9th Cir. 1960) (quoting W.F. Sebel Co. v. Hessee, [1954] USCA10 100; 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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