E. Clemens Horst Co. v. Federal Mutual Liability Insurance

GRAY, J.,

pro tem.

After an extended hearing of defendant’s motion to dismiss the action, under section 583 of the Code of Civil Procedure for failure to bring it to trial within five years after its commencement, the court, according to the entry in its minutes, ordered that the cause be dismissed. The next day, the court, upon its presentation by defendant, without notice to plaintiff, signed a formal judgment, which ordered that the action be dismissed

with prejudice.

On the following day this judgment was entered and notice thereof given by defendant to plaintiff. Approximately ten months later, the court, upon plaintiff’s application,

ex parte,

signed an order correcting

nunc pro tunc,

the judgment by eliminating therefrom the phrase “with prejudice”. From this last order, defendant appeals.

The parties agree that a court has plenary and inherent power, at any time, on its own motion or that of a party with or without notice, to correct clerical errors in the record of its judgment, so as to make such record conform to the judgment actually rendered, but it cannot under the guise of exercising such power, correct judicial errors which it committed in the rendition of its judgment.

(Forrester

v.

Lawler,

14 Cal. App. 171 [111 Pac. 284].) In applying these principles, the parties differ as to whether the minute order or the formal judgment constituted the judicial act which terminated the proceedings. In the cited case, upon which appellant mainly relies, it was held, without discussion or citation of authority, that, under similar facts, the formal judgment rather than the previous minute order was the judicial determination. However, this case has never been cited as to this particular holding which seems contrary to the generally accepted view. As was said in

Colby

v.

Pierce,

17 Cal. App. (2d) 612, 614 [62 Pac. (2d) 778], in holding invalid an

ex parte