WHEELER FERTILIZER CO.

v.

ROGERS

Petitioner's motion for a peremptory writ of mandamus admits that the final judgment dated June 16, 1949, was inadvertently entered through error or mistake by the respondent, as reflected by the return or answer. The respondent had the right, as a matter of law, to correct the error or mistake by vacating and setting aside and holding for naught the final judgment entered on June 16, 1949. State ex rel. Melbourne State Bank v. Wright, Circuit Judge, 107 Fla. 178, 145 So. 598; Zemurray v. Kilgore, 130 Fla. 317, 177 So. 714, and similar cases. It is our conclusion that the peremptory writ of mandamus should be denied, the alternative writ previously issued should be quashed and the petition be dismissed.

It is so ordered.

TERRELL, HOBSON and ROBERTS, JJ., concur.

SEBRING, J., not participating.

HOBSON, Justice (concurring specially).

Although I concur in the opinion prepared by Mr. Justice Chapman I cannot subscribe unqualifiedly to the rule laid down by him, *87 to-wit: "Orders, decrees, or judgments, made through fraud, collusion, deceit, or mistake, may be opened, vacated, or modified at any time, on the proper showing made by the parties injured." (Italics supplied.)

The foregoing rule was pronounced in the case of Alabama Hotel Company v. J.L. Mott Iron Works, 86 Fla. 608, 98 So. 825, 826. In that case the order vacating a previous order of March 8, 1922, was made on March 10, 1922. The order of March 8, 1922, was one by which the court dissolved a garnishment against Alabama Hotel Company. This order was not a final judgment. Moreover, the order of March 10, 1922, was obviously rendered at the same term of court in which the order of March 8, 1922, was entered. Consequently, the question of whether the court had lost jurisdiction of the cause by virtue of the passing of the term was not presented. Such question is before us in the instant suit. The rule which was necessarily enunciated in the Alabama Hotel Company case, and which was controlling therein, was stated as follows:

"It is also well settled that interlocutory judgments or decrees made in the progress of a cause are always under the control of the court until final disposition of the suit, and they may be modified or rescinded upon sufficient grounds, shown any time before final judgment, should it be after the term in which made."

The rule with which we are dealing in the instant suit was clearly obiter dictum in the opinion in the case of Alabama Hotel Company v. J.L. Mott Iron Works, supra.

The authorities cited in the case of Alabama Hotel Company v. J.L. Mott Iron Works, supra, in support of the rule to which reference has previously been made deal exclusively with the subject of judgments, orders or decrees which had been entered by virtue of collusion or fraud with the single exception of the case of Taylor v. Sindall, 34 Md. 38.

A somewhat exhaustive study of the cases and text books on the subject of setting aside orders, decrees or judgments after the term has passed convinces me that it is not every mistake certainly not a mistake in the sense of judicial error which may be made a predicate for an order vacating a final judgment rendered in a term of the Circuit Court which had expired. The inadvertence on the part of the Circuit Judge in this case in entering the final judgment which he subsequently vacated was brought about by a misunderstanding of the actual verbal order which was made by the Judge when he sustained the demurrer to the declaration. It was the understanding of the court that counsel for the respective parties had agreed that counsel for the plaintiffs would either amend their declaration or file three separate suits. This understanding was not carried forward when the verbal order was reduced to writing. An order is usually considered rendered when it is pronounced by the judge in open court. Such order is the true order and its reduction to writing is merely for the purpose of completing the record and of providing a predicate for execution or appeal. The original mistake in reducing the court's verbal order to writing was in the nature of a misprision and resulted in the inadvertent rendition of the final judgment. We have repeatedly held that a misprision or clerical error may be corrected at any time to the end that the order may speak the truth. See Adams v. ReQua, 22 Fla. 250; Hyer's Executors v. Caro's Executrix, 18 Fla. 694; McGourin v. Town of DeFuniak Springs, 52 Fla. 556, 42 So. 187; Kroier v. Kroier, 95 Fla. 865, 116 So. 753.

The Circuit Judge in his return to the alternative writ does not charge counsel with fraudulent conduct but he stated definitely that he relied, as was his custom, upon counsel to prepare an order in accordance with his verbal ruling. It is, therefore, clear that regardless of the good motives on the part of counsel who prepared the order (and likewise regardless of the theory of misprision) a fraud upon the rights of the plaintiffs in the original suit followed this inadvertence as a natural consequence. It is my opinion that the mistake in this case was of such character as to justify the order *88 of the Circuit Court vacating the final judgment rendered not upon the merits but solely upon the pleadings. Compare the case of State ex rel. Alfred E. Destin Co. v. Heffernan, Fla., 47 So. 2d 15.

ADAMS, C.J., and TERRELL, CHAPMAN, THOMAS and ROBERTS, JJ., concur.