Calkins v. Monroe

THE COURT.

It is averred by petitioners that a certain judgment was rendered by the superior court in an action and proceeding to which petitioners were parties, in August, 1910; that thereafter, in February, 1911, the court amended the judgment in certain respects, notably in that it decreed and adjudged certain rights to a party substituted in lieu of one of the litigants at the time of the trial, and within due time after the amendment petitioners, after notice of appeal, applied to the court to settle a bill of exceptions involving the right of the court, under the circumstances of the case, to amend the judgment. This bill of exceptions the court refused to sign upon the theory, as appears from the return of the judge, that the amendment to the judgment was not such as in any wise affected the rights of petitioners, and that the effect of the decree was to cast upon petitioners, or their property, no burden other than that imposed by the original decree, which it is claimed settled and determined petitioners’ rights to the property. It may be assumed that the court may at any time correct a judgment as to immaterial matters occasioned by inadvertence, but that this right does not exist should such amendment materially affect the rights of litigants objecting to such amendment. The question, therefore, for determination upon this application is as to' the materiality of the matters involved in the amendment to the judgment; and when we say “materiality,” we mean to say, as affecting the rights of objecting litigants. It is not made clear, either by the petition or by the return, whether or not this amendment was made on account of any inadvertence and was immaterial in so far as petitioners’ rights were concerned. Nor can the same be determined without a careful examination of the pleadings, report of the

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referee, and the original judgment, in connection with the amendment. These matters are not presented to the court upon this application; nor has the respondent made it clear to us that in the ordering of the amendment he was within the rule permitting such an amendment as to immaterial matters. Our supreme court has said that, when a trial court is in doubt as to the right of a party to have a bill of exceptions or statement of the case settled, because the same has not been presented within time, the better practice is for the 'trial court to sign the bill of exceptions or statement subject to objections thereto, the evidence in support of which should be incorporated in a bill of exceptions, so that the appellate court upon appeal will be in a position to determine whether or not such statement or bill was presented for signature within time.