Lankton v. Superior Court

CURTIS, J.

Proceeding to review order of trial court or prohibit said court from modifying judgment after the time for appeal from said judgment and for motion for new trial has elapsed. No showing was attempted to be made that the judgment had been rendered through the mistake, inadvertence, surprise or excusable neglect of the defendant. Therefore, the court was without authority to modify the judgment upon any of those grounds under the provisions of section 473 of the Code of Civil Procedure. The modification which the court in its memorandum opinion indicated it proposed to make in the judgment was to reduce the amount thereof from $3,970 to $2,295, not on the ground of any clerical error of the court in the rendition of the judgment, but because the court upon the argument of the motion to modify the judgment came to the conclusion that it was without authority to enter a judgment for an amount exceeding the sum of $2,295. The decision of the court at the time of its rendition of the judgment that the plaintiff was entitled to a judgment against the defendant in

[696]

the sum of $3,970 was the decision of a judicial question, and if any error was made by the court in such decision, it was a judicial error which could only be corrected by the court upon a motion for a new trial, or by an appellate court upon an appeal.

The judgment in this ease was the identical judgment which the trial court intended to render. There was no mistake in its entry, and it expressed in apt and definite terms the conclusion at which the trial court arrived during the trial of the action. If the court misconstrued the evidence before it, or misapplied the law applicable to the facts disclosed by the evidence, or was even misled by counsel, such an error was in no sense a clerical error which could thereafter be corrected by the court upon its own motion or in any proceeding except on motion for a new trial.

(O’Brien

v.

O’Brien,

124 Cal. 422, 426 [57 Pac. 225, 226];

First National Bank of Fresno

v.