Forrester v. Lawler
Before: Shaw
Synopsis
Amendment of Judgment of Dismissal—Failure to Conform to Order—Judicial Error—Lapse of Time—Summary Order.—A judgment signed by the judge and duly entered by the elerk, dismissing an action, and reciting that it was entered by consent of the parties, but failing to conform to the order of dismissal, in omitting to state that the action was dismissed without prejudice, is a judicial error, which cannot be corrected by a summary order of amendment, made after the lapse of six months, and without a motion for a new trial.
Id.—Power of Court to Allow Amendments to Judgments at Ant Time.—The court has power to allow amendments to judgments regardless of the lapse of time, where the record as entered by the clerk fails to conform to the judgment rendered by the court. The court has the inherent right and power at any time to cause its acts and proceedings to be correctly set forth in its records.
Id.—Absence of Summary Power—Judicial Error.—Judicial error cannot be summarily corrected at any time, and the court cannot, under the pretense of an amendment of its record, revise a judgment which it has in fact rendered, after the right to correct it in any form has become final.
Id.—Judicial Act of Court—Einality of Judgment.—In the case at bar the rendition of the judgment which it was sought to amend after the lapse of six months was the judicial act of the court attested by the signature of its judge, which the court, had no power to correct by the amendment ordered after the lapse of six months from its entry. It could not be corrected by the summary .order from which the appeal is prosecuted.
Id.—Error of Law Committed at Trial—Remedy by Motion for New Trial.—An error of law committed at the trial should be remedied on motion for a new trial.
SHAW, J.
This is an appeal from an order granting a motion to amend a judgment theretofore rendered and entered.
Upon a hearing had on February 28, 1908, of defendant’s motion to dismiss the action for want of prosecution the court, as disclosed by the minute entry of the clerk, ordered the cause dismissed without prejudice. Thereafter, on August 26, 1908, the court rendered judgment wherein it was recited that the dismissal was by consent of parties and omitted to state that such dismissal was without prejudice. This judg
[173]
ment was signed by the judge of the court and duly entered by the clerk on August 28, 1908.
Thereafter, more than six months having elapsed from the rendition and entry of such judgment, plaintiff, pursuant to notice thereof, made a motion to have the same amended, the ground therefor being that the judgment so rendered did not conform to the order of dismissal made February 28, 1908, as shown by the minute entry of the clerk, in that it omitted to state that such dismissal was had without prejudice and recited that it was made by agreement of the parties. This motion was based upon the records and files in the action and upon certain affidavits presented. At the hearing thereof the court granted the motion, and on March 22, 1909, ordered the judgment amended in accordance with the form and substance of a proposed judgment, copy of which was attached to the notice of motion and served upon defendant.
The court erred in granting this motion and in making the order from which defendant appeals.
No doubt exists as to the power of the court to allow amendments, regardless of the lapse of time, where the record as entered by the clerk fails to conform to the judgment rendered by the court. (Freeman on Judgments, sec. 70;
Egan
v.
Egan,
90 Cal. 15, [27 Pac. 22];
City and County
v.
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