Rule 60. Relief from judgment or order

Relief from judgment or order.

(a) Clerical mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal or thereafter, such mistakes may be so corrected by the trial court. Whenever necessary a transcript of the record as corrected may be certified to the appellate court in response to a writ of certiorari or like writ.

(b) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. Leave to make the motion need not be obtained from any appellate court except during such time as an appeal from the judgment is actually pending before such court. If leave of the appellate court is obtained, the motion shall be deemed to have been made in the trial court as of the date upon which leave to make the motion was sought in the appellate court. This rule does not limit the power of a court to entertain an independent action within a reasonable time and not to exceed three (3) years after the entry of the judgment (or such additional time as is given by § 6-2-3 and § 6-2-8, Code of Alabama 1975) to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, supersedeas, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

(dc) District court rule. Rule 60 applies in the district courts. [Amended 7-10-90, eff. 10-1-90; Amended eff. 10-1-95.]

Committee Notes

Committee Comments on 1973 Adoption Subdivision (a). This subdivision deals solely with the correction of clerical errors. Errors of a more substantial nature are to be corrected by a motion under Rules 59(e) or 60(b). Thus the Rule 60(a) motion can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what was originally pronounced. E.g., West Virginia Oil & Gas Co. v. Breece Lumber Co., 213 F.2d 702 (5th Cir.1954). A similar limitation has applied in Alabama to the procedure provided by Code of Ala., Tit. 7, §§ 566, 567. Under the rule, however, evidence dehors the record may be considered, Tillman v. Tillman, 172 F.2d 270 (D.C.Cir.1948), cert. denied 336 U.S. 954, 69 S.Ct. 883, 93 L.Ed. 1108; Albion-Idaho Land Co. v. Adams, 58 F.Supp. 579 (D.Idaho 1945). Alabama practice has not permitted use of such evidence. Davis v. State, 136 Ala. 136, 33 So. 813 (1902); see Gaston v. Reconstruction Finance Co., 237 Ala. 111, 185 So. 893 (1939). The court may order notice of a motion under Rule 60(a) to be given, as is already true in Alabama in equity. Equity Rule 63. Heretofore, notice has not been required in law actions. Code of Ala., Tit. 7, § 566. The final two sentences of the subdivision have been substituted for the final sentence of Federal Rule 60(a). The change eliminates the requirement of the federal rule that permission be obtained from the appellate court to correct clerical errors during the pendency of an appeal. Present Alabama law makes no such requirement of leave. Johnson v. Bryars, 86 So.2d 371 (Ala.1956); Phillips v. State, 162 Ala. 14, 50 So. 194 (1909). Under this subdivision as altered, it will also be possible for the trial court to correct mere clerical errors even after appeal has been completed. This aspect of the rule changes Alabama practice. Stephens v. Norris, Stodder & Co., 15 Ala. 79 (1849). Subdivision (b). This subdivision specifies certain limited grounds upon which final judg