On Petition for Rehearing.
Ellis, J.The Polk County National Bank in January, 1917, filed its motion in the Circuit Court for DeSoto County to amend nunc pro tunc the final judgment obtained by the movant against The Florida Development Company and O. M. Crosby in September, 1895, in a cause then pending in the Circuit Court for said county.
The Florida Development Company and O. M. Crosby appeared by their attorneys in opposition to the motion and urged that the Charter of The Florida Development Company expired by limitation of law in 1911; that while the Polk County National Bank, which in 1895 did “recover a judgment against the Florida Development Company and the said O. M. Crosby” it had assigned its interest in the judgment to another, and, therefore, is not a party, in interest, and that the judgment sought to be amended appears on its face to have been barred by the statute of limitations.
On January 18, 1917, the court on the hearing of the motion entered an order “amending the judgment nunc *632pro time.” To. this judgment of the court ¿'writ of error was taken in behalf of the defendants, the Florida Development Company and O. M. Crosby.
The judgment was affirmed by this court January 10„ 1919, without written opinion.
The plaintiffs in error by petition now ask for a rehearing. The grounds urged are that this court failed to consider that the judgment amended was entered by the clerk of the court who under the statute’' (Section 1035 of the Revised Statutes, 1892) had no authority to 'include -in'the'judgment air allowance for' attorneys’-fees, Avhich nevertheless Avas done, so the judgment was" ‘void; that the judgment sought to be ainended was more than twenty years old; that'there is ho provision of laAV which authorizes the court to amend a judgment “rendered” by the clérk riuring vacation'; that'when'the nunc pro tuno order wás madé the Florida Development Comphny hád ¿eased to 'exist "by limitation of its'charter find- its debts Ávefe'.thereby extinguished.' - " •
The bill of exceptions shows that the movant offered in support of its motion a certified copy of the' judgment entered by the clerk oil the 16th day of September, 1895. This judgment is set'out in full in the case of Smith v. Wilson, 17 Fla. 624, 71 South. Rep. 919. In that case Smith, the plaintiff in error, contended that fhé “so-called” judgment Avas not a judgment of the court, “but a mere finding of the clerk as to the' defendant’s indebtedness to the plaintiff and the amount due and Avas not such an adjudication as concluded tlie matter in controversy between'the parties upon which legal process for its enforcement could issue.” We held that an inspection of the document showed the líárnes of the parties, the court iii which the action was pending," that the defendants had been duly seiwed with process and had ap*633peared, but had failed to plead or demur; that a default had been duly entered against them for failure to plead or demur, that the action was upon a written instrument for the payment of money and that the plaintiff had produced and filed the same and that the clerk undertook to “enter” final judgment agáinst the defendants under Section 1035, Revised Statutes of 1892, Section 1425, General- Statutes of 1906. That assuming that the clerk acted upon the proofs submitted in assessing the amount due he had not ‘ exercised -the power ' conferred by the statute to “enter” a judgment therefor.
In other word^, while all the conditions existed and were complied with which the statute provides and which entitled the plaintiff to a judgment, the failure to enter the judgment proper was a mere misprision of the clerk of the court.' The declaration, the process, service," appearance and default were all regular. The plaintiff produced and filed the- instrument sued on,' which was a written instrument for the payment of money. Thus far the plaintiff was charged with the duty of attending to the regularity of the proceedings; See Wood v. Bank, 1 Fla. 378.
The plaintiff was then entitled under the statute to his judgment. That it was not duly “entered” in formal words was the fault of the clerk. Having complied with all the requirements of the statute and having submitted a cause regular in ■ all its proceedings the plaintiff was them entitled; under the law, to his judgment. In fact, the statute under such circumstances operates to produce thé same situation as when a judgment is pronounced by the mouth of the court or judge after a trial upon the issues. It is the affirmation of the statute, it is the sentence and determination of the law and depends not upon the opinion or conclusion of a court or judge, but upon *634the regularity of the proceedings in a cause duly commenced in a proper forum, the due and proper entry of a default against the defendant for failure to plead or demur and the production of the instrument sued upon and the assessment thereon by the clerk of the amount due. The “entry” by the clerk of such a judgment is purely a ministerial function. See 1 Black on Judgments (2nd ed.), Sec. 88, cited with approval in Parker v. Dekle, 46 Fla. 452, 35 South. Rep. 4. That the clerk had jurisdiction to enter the judgment was not denied, all the conditions were complied with; the cause was one in which the clerk was authorized to assess the aniount due and enter a judgment therefor. But as we said in the Smith-Wilson case, supra, the clerk failed to enter the judgment. If a judgment had been entered, but for an amount greater than the plaintiff was entitled to, or if it contained some mistake or irregularity it would probably not be void, but merely voidable and subject to be cured by motion or corrected .on appeal. See 1 Black on Judgments (2nd ed.), Sec. 88; Lenoir v. Broadhead’s Admr., 50 Ala. 58; Sherry v. Priest, 57 Ala. 410; Hastings v. Alabama, State Land Co., 124 Ala. 608, 26 South. Rep. 881; Alpers v. Schammel, 75 Cal. 590, 17 Pac. Rep. 708; Wall v. Covington, 83 N. C. 144; Arrington v. Conrey, 17 Ark. 100; Smith v. Hood, 25 Penn. 218; Sherman v. Nixon, 37 Ind. 153. The authority of the court to amend judgments in such cases is generally conceded; it arises from the high equity powers of the court, which enable it to correct errors and make the record speak the truth. whenever the ends of justice require, said the Arkansas court in Arrington v. Conrey, supra. In the Parker-Dekle case, supra, the court held that the action of the clerk on testimony, which he had no authority, to consider in assessing the amount the plaintiff was en*635titled to recover, rendered the judgment as entered erroneous. The court regarded the error as fundamental or jurisdictional. In the instant case, however, the clerk merely assessed the amount due for principal and interest and ascertained that there was also due a certain sum for attorneys’ fees, but entered no judgment for either amount, nor for any amount, although, as we said in the Smith-Wilson case, supra, he undertook to do so.
The question in the instant case is, had the court below power to enter the judgment nunc pro tunc? We treated the motion as one to order a mine pro• tunc entry of the judgment. The language of the motion, however, in one part is to “amend nunc pro tunc the final judgment entered,” while in the third and fourth grounds of the motion the language indicates the purpose of securing the entry of a judgment now for the time when the plaintiff was entitled to it. The third ground states that the proposed judgment is in accordance with the records and files in the cause, and the fourth ground states that it is such a judgment as the plaintiff was entitled to have entered on September 16, 1895. The bill of exceptions fully sustains these two grounds, and it does not appear that any injury will result to third persons by the entry.
The power of the court to enter judgments nunc pro tunc is universally conceded. It is one which has been recognized and exercised from ancient times and as a part of the courts’ common law jurisdiction. See 1 Black on Judgments (2nd ed.), Sec. 126; Mohun’s Case, 6 Mod. 59; Mayor of Norwich v. Berry, 4 Burr. 2277; Evans v. Rees, 12 Adol. & E. 167 (40 Eng. Com. Law. 46); Mitchell v. Overman, 103 U. S. 62; Sanderson v. United States, 210 U. S. 168, 28 Sup. Ct. Rep. 661; Hess v. Cole, 23 N. J. L. 116. The general principle is .that whenever delay in entering a'judgment; is caused by the action of the *636court, judgment mine pro' tuné will be allowed as of the time when the party would'otherwise have been entitled to it if justice requires it. See McNamara v. New York, L. E. & W. R. Co., 56 N. J. L. 56, 28 Atl. Rep. 313; Ferrell v. Hales, 119 N. C. 199, 25 S. E. Rep. 821; 15 R. C. L., pp. 622-629. The power to enter a judgment nunc pro tunc'is often exercised after'one of the parties to the actioiTdies, Or'in cáse o'f a corporation after its dissolution. 15 R. C. L., p. 626.
It cannot be said that the failure of '"the clerk' to - ((en--i oh” "the judgment is attributable to the-laches or negligence of the-plaintiff, although a-high degree of prudence would; 'Have dictated' an' examination of-'the clerk’s entry oh the minutes'of the court- to ascertain if he had in fact" made the proper entry.-' Stern v. Bennington, 100 Md. 344, 60 Atl. Rep. 17. There is some confusion of the terms' “render” and “enter” in'connection with-the statutory' judgment to which the plaintiff in a case is entitled 'and'" which is'secured to him by the provisions of the act' where he has complied with all its requirements. It is the 'plaintiff’s duty to- see to it that" the proceedings áre ■ regular up to and including the request for a default, and after'that it is lxis duty to produce and cause to be filed'the instrument in-writing for the payment of money upon which his action is founded; then the statute assures, declares, affirms, pronounces as it were the judgment, which it is the duty of the clerk to “enter” after he has assessed or ascertained the amount due.
In the instant case there'was no conceivable objection to the mine pro tunc entry of the judgment. The proceedings in the case in'which the-plaintiff became entitled to the judgment were all regular; the default for want of a plea or demurrer was duly entered;-the plaintiff had produced and cáused to be'filed the written instrument for *637the payment of money on which the action was founded and the clerk had assessed thereon the amount due for principle and interest, for that amount the statute secured a judgment to the plaintiff, the clerk’s act in assessing attorneys’ fees and designating separately an amount therefor was unauthorized and superfluous, the statute gives no judgment therefor and authorizes none to be entered for such fees under these circumstances, the failure to enter the proper judgment was the fault of the court’s clerk and was not attributable to the negligence or laches of the plaintiff (15 R. C. L., p. 627), and the court had the power to order a nunc pro time entry of the judgment; the interest of no third party appears to be affected thereby and the ends of justice required the entry to be made. The dissolution of the corporation defendant was not an obstacle (15 R. C. L., p. 626) and the record does not disclose that the plaintiff had no interest in the matter. The fact that the Polk County National Bank in 1897 sold its judgment did not divest it of the right' to maintain this motion in the original cause to the end that the record should be made to speak the truth and the bank’s transferee made secure in her purchase of the judgment and all interests acquired thereunder protected. The purpose of the motion is to protect the interests of all persons who acquired rights under the judgment and subsequent proceedings.
The effect of the order is merely to enter of record now' the judgment which the plaintiff bank had obtained under the statute in 1895, and which through the neglect of the clerk had not been entered on the record. Third persons, it is understood, cannot be injured by the court’s action. See 1 Black on Judgments (2nd ed.), p. 190.
The case of Hagler v. Mercer, 6 Fla. 721, is in some respects not unlike the one at bar. There judgment was *638given by nil dicit, the defendant withdrew his plea and said nothing. A writ of inquiry was issued to the clerk to assess damages, he entered a judgment formally, but left a blank where the damages and costs should have been- inserted, and died. At the next term “a judgment was entered on motion to supply this deficiency.” Thus the judgment to which the plaintiff was entitled at the former term was completed by the nunc pro- time entry. The lapse of time seems not to affect the court’s power to make such an order, nor does the death of one of the parties. See 1 Black on Judgments (2nd ed.), p. 190; Davies v. Davies, 9 Ves. Jr. 461; Campbell v. Mesier, 4 Johns. Ch. (N. Y.) 335; Bank of U. S. v. Weisiger, 27 U. S., 7 L. Ed. 492; Mitchell v. Overman, supra.
The petition for a rehearing is, therefore, denied.
Taylor, Whitfield and West, J. J., concur. Browne, C. J., dissents.