Security-First National Bank v. J. G. Ruddle Properties, Inc.

[347]

WASTE, C. J.

This is a motion by the respondent, upon suggestion of diminution of record, to have inserted in and made a part of the clerk’s transcript an order amending the judgment appealed from.

Plaintiff brought the action to foreclose a mortgage given by the appellant J. G. Ruddle Properties, Inc., to secure a bond issue. Several junior encumbrancers were also named as defendants, some of whom answered, but none of whom asked that his lien be foreclosed. In fact, separate actions for the foreclosure of their respective liens had been filed by a few of the junior lienholders. At the commencement of the trial, it appears to have been understood by court and counsel that plaintiff’s lien alone was. to be foreclosed, and the findings of fact and conclusions of law, constituting the “decision” or judgment of the court (Aspe

gren & Co.

v.

Sherwood, Swan & Co.,

199 Cal. 532, 537 [250 Pac. 400]), were and are in accord with this understanding. However, the formal judgment thereafter signed by the court and entered by the clerk provided for the foreclosure of three of the junior liens, in addition to the foreclosure of plaintiff’s mortgage. This apparent inadvertence was not called to the' trial court’s attention on the motion for new trial. The first brief filed upon the appeal from the judgment brought the matter to the attention of the respondent who, in turn, directed the attention of the trial court to the apparent error or inadvertence in the judgment as entered. Declaring that the judgment as entered “does not correctly state the decision and judgment of the court by reason of inadvertence and mistake of the court and by reason of a clerical error and misprision of the clerk”, the court made an order amending the judgment

nunc pro tunc,

to make it conform to the decision as pronounced in the findings of fact and conclusions of law; that is to say, to provide for the foreclosure of respondent’s mortgage alone. By the present motion, respondent seeks to have the “Order Amending Judgment Nunc Pro Tunc” incorporated in and made a part of the transcript now on file in this court on the appeal from the judgment.