Treece v. Treece

THE COURT.

An appeal by plaintiff from an order entered on March 17, 1931, amending an interlocutory decree of divorce and denying plaintiff’s motion to set aside the judgment as amended.

At the conclusion of the trial of the action findings were waived and on January 2, 1930, an interlocutory decree of divorce was granted to the plaintiff. The material parts of the decree are as follows: “ ... It is hereby ordered, adjudged and decreed that a divorce ought to be granted to said plaintiff from said defendant, and that said plaintiff is entitled to a divorce from said defendant on the grounds of defendant’s extreme cruelty toward plaintiff, and (it being stipulated in open court by the parties hereto as and for a property settlement herein) that defendant and cross-complainant have the community household furniture, and that plaintiff pay to defendant and cross-complainant the sum of twelve hundred fifty ($1,250) dollars in the following manner, to wit: not less than sixty-five ($65.) dollars on the 1st day of January, 1930, and not less than sixty-five ($65.) dollars on the first day of each and every

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month thereafter until the whole sum of said twelve hundred fifty ($1,250) dollars has been paid in full.”

The order complained of directed that the decree be amended by inserting therein the following: “That in pursuance of said stipulation it is hereby ordered, adjudged and decreed that plaintiff pay to defendant the sum' of twelve hundred and fifty ($1,250) dollars in the following manner, to wit, not less than sixty-five ($65.) dollars on the 1st day of January 1930, and not less than sixty-five ($65.) dollars on the 1st day of each and every month thereafter until the whole sum of twelve hundred fifty ($1,250) dollars has been paid in full.”

Plaintiff claims that the error, if any, sought to be corrected by the motion was judicial rather than clerical, and that the court had lost jurisdiction by lapse of time to correct its judgment.

As to this objection it will be sufficient to say that the power to correct its record to accord with the facts, where the error appears on the face of the record, is not lost by mere lapse of time