1. If the material issues are conceded or are established beyond dispute, it is the duty of the court to direct a verdict against the party failing of proof on such issue. The verdict responsive of the decision, and direction of the court, becomes the action, not of the jury, but of the court.
2. If the verdict and judgment thereon, by reason of the mistake and omission of the clerk, does not respond to the court’s decision and direction the trial court may, at a subsequent term, amend the judgment rendered at the former term, as against the parties to the suit, by a nunc pro tunc entry so as to make the judgment accord with the decision actually rendered by the trial court at the former term.
3. At a subsequent term, on January 20, 1923 the plaintiff filed a motion for an order nunc pro tunc, to so correct its judgment as to make it speak the truth in respect to the court’s decision made at the former term.
On the same day pre-existing creditors with knowledge at the time that a judgment had been previously rendered against one of the parties only and having knowledge that all the parties supposed that it was also rendered against the owner of the premises, filed their petition in attachment against such owner; the attachments were levied on the premises at a time subsequent to the filing of plaintiff’s motion for such nunc pro tunc order.
HELD:— That such pre-existing creditors did not obtain priority as against the plaintiff’s judgment lien. ■
Judgment affirmed.
Marshall, C. J., Jones, Matthias, Day and Kinkade, JJ., concur.