dissenting. — In 189.5 suit was brought in the Circuit Court in Polk County by the defendant in error against the plaintiff in error. On the 2nd of September, 1895, judgment by default was entered by the clerk. Subsequently plaintiff’s attorney produced and filed with the clerk affidavits of two practicing attorneys to the effect that one hundred and seventy-five dollars would be a reasonable attorneys’ fee in that action, and on the 16th of September he entered a final judgment in favor of the plaintiff as follows:
“The above-styled cause coming on to be further heard on this the 16th day of September, 1895, and it appearing from the returns of the Sheriff filed herein that the *639defendants were duly served according to law; that the plaintiff filed its cause of action in said cause, the same being a promissory note given by said defendant. It also appearing that defendants filed their appearance according to law, but, having failed to plead, answer or demur, it further appearing that a default judgment was duly entered up against the defendants for want of such pleadings, it is, therefore, ordered and adjudged that the defendants are due the plaintiff the sum of $1,500 as principle and $50 accrued interest to this date, also $175 attorney’s fee, together with thirteen dollars and eighty-six cents cost in said cause by it expended and that execution issue therefor.
“Witness my hand and official seal at Arcadia, Fla., date above written.
“(Seal.) JOHN H. ALFORD, Clerk.”
The suit "was on a primossry note for $1500 with interest after maturity at the rate of ten per cent, per annum until paid, and contained provision for “reasonable attorney’s fee.”
On the 11th day of January, 1917, more than twenty-one years after the entry of final judgment by the clerk,, the Polk County National Bank filed' its motion to amend nunc pro tunc the final judgment entered on September 16, 1895, and on the 18th day of January, 1917, the Circuit Judge entered his order amending the judgment to read as follows:
“The above styled cause coming on to be further heard on this the 16th day of September, 1895, and it appearing from the return of the Sheriff filed herein that the defendants were duly served according to law; that the plainiff filed its cause of action irr said cause, the same being a promissory note given by said defendants; it also appearing that defendants filed their appearance accord*640ing to law, but having failed to plead, answer or demur; it further appearing that a default judgment was duly entered up against defendants for want of such pleadings; and it being ascertained and determined by the clerk of said court from the said proofs produced and filed herein, to-wit, the said promissory note, that the defendants are indebted to the plaintiff in the some of Fifteen Hundred Dollars as principal, together with the interest thereon;
“It is therefore ordered and adjudged that the defendants are due the plaintiff the sum of Fifteen Hundred Dollars as principal and Fifty Dollars accrued interest to this date;
“It is therefore also further ordered, considered and adjudged by the Court that the plaintiff, the Polk County National Bank, do have and recover of and from the said defendants, the Florida Development Company, a corporation created and existing under the laws of the State of Florida, and O. M. Crosby, the sum of Fifteen Hundred Fifty Dollars ($1550.00) as damages, together with Thirteen Dollars and Eighty-six Cents costs in said cause by it expended, and that execution issue therefor.
“Witness my hand and official seal at Arcadia, Fla., date above written.
“(Sd.) JOHN IT. ALFORD,
“Clerk.”
It is quite clear that the clerk had no authority to enter the final judgment of September 16, 1895, allowing $175 for attorney’s fee, but he intended to so enter it, and it is not claimed that such was not his intention. Tt is also quite clear that the judgment which the Circuit Judge ordered to be entered on January 18, 1917, was not an attempt to amend the record so as to make it speak the truth, but was intended to correct a fundamental error in the original judgment.
*641A judgment may be corrected by a mine pro tunc order where there has been a mistake or error in entering it, whereby it appears that the judgment was not the judgment that was intended to be entered.
The judgment in this case shows on its face that it was in truth and in fact the identical judgment that the clerk intended to enter. Neither the motion nor the order of the court is based on any idea, claim or pretense that the judgment which was sought to be amended was not the identical judgment the clerk intended to enter. If he transcended his authority and entered a judgment for which there was no warran t or authority in law, it was a nullity. The rule is thus stated in Euling Case Law: “As in the case of the ordinary amendments of all judgments, the power of the Court to amend judgments nunc pro turne does not extend to modifying the substantive judgment previously determined upon and intended to be entered.” Vol. 16, p. 682. “In the exercise of its power of amendment, the court is not, however, authorized to do more than to make its records correspond to the' actual facts, and cannot, under the form of an amendment of its records, correct judicial error, or make of record an order or judgment that was never in ract given. Vol. 7, p. 1020.
The question seems to me to be settled in this State, in accordance with the sound principles laid down by textbook writers and decisions of other courts, and the effect of the decision of the majority of the court in this case will be to overrule that of Parker v. Dekle, 46 Fla. 452, 35 South. Rep. 4. In that case the promissory note th\t formed the cause of action provided, as in the instant case, for the payment of “a reasonable attorney’s fee.” Demurrers to the defendant’s pleas were sustained and the court rendered! judgment against the defendant and instructed the clerk to assess the plaintiff’s damages and *642costs and to enter up final judgment therefor. The plaintiff’s attorney filed with the clerk an affidavit from a practicing attorney to the effect that $40 would be a reasonable attorney’s fee in that action, and thereupon the clerk “not in term time, but in vacation, entered up against the defendant judgment in favor of the plaintiff for $232.50'.”
In an opinion by Mr. Justice Shackleford, this Court said: “Where the record' itself discloses a jurisdictional or other fundamental error, such as that the Court below in entering the judgment was without jurisdiction, or that the judgment is void on its face, such matter may be considered by this court, even though no error by assigned expressly presenting same. * * * The proper practice in a case where a jurisdictional or fundamental error is found in the record, whether the same be assigned or not, is for the Appellate Court to reverse the judgment entered in such case. In addition to the authorities above cited, see the following, in which it was held' that a void judgment or a judgment rendered without authority should be reversed. Glens Falls Ins. Co. v. Porter, 44 Fla. 598, 33 South. Rep. 473; Petty v. Durall, 4 G. Greene (Iowa), 120; United States v. Nourse, 6 Pet. 470; Jordan v. Dennis, 7 Metcalf, 590; Borough of Stonington v. States, 31 Conn. 213; Cooper v. American Central Ins. Co., 3 Colo. 318; Castleberry v. State, 68 Ga. 49; Gray v. Thrasher, 104 Mass. 373; Abrams v. Jones, 4 Wis. 806.
“It seems that such a judgment as the one entered in the instant case would be held void even on collateral attack. Wilson v. Sparkman, 17 Fla. 871; Einstein’s Sons v. Davidson, 35 Fla. 342.”
In Glens Falls Insurance Company v. Porter, 44 Fla. 568, 33 South. Rep. 473, this court said: “It is settled here that the authority of the clerk of the clerk of the *643Circuit Court to enter final judgments consequent upon defaults is derived entirely from the statute, and the statute must be strictly pursued. Blount v. Gallagher, 22 Fla. 92; Snell v. Irvine, 17 Fla. 234; Coons v. Harllee, 17 Fla. 484; Ropes v. Snyder Harris Basset Co., 37 Fla. 529, 20 South. Rep. 535. The statute, section 1035, Revised Statutes, that gives authority to clerks to enter final judgments, contemplates that the clerk can enter a final judgment after default only in those cases where the cause of action is purely and simply a money demand founded upon a contract for the payment of money only. In cases where extrinsic evidence dehors the contracts sued upon is necessary to ascertain the amount to be recovered the clerk has no authority to entertain such evidence or to found a final judgment thereon.”
An attempt is made to differentiate the judgment in Parker v. Dekle, supra, and that in the instant case, because in the former the clerk added the amount of the attorney’s fee to the amount- of damages and entered the total sum in the judgment, while in the instant case he entered the items of damages and attorney’s fee separately. The record in the former case shows that the amount of attorney’s fee was $40, and it could have as readily been subtracted from the total amount of the judg ment in that case as was attempted to be done by the Circuit Judge in the case at bar.
As the error in this case was fundamental, it could not be validated by a nuno pro tuno amendment, which made an entirely different judgment from that which the clerk entered, or intended to enter.