delivered the opinion of the court:
This was a proceeding in chancery in Christian county, by appellees, against appellant, to reform a deed made by Emma P. Gill and others to Harriet Adams. The court below found for the complainants, and the cause is brought to this court on appeal.
Several points are assigned for error: One, that the court erred in not ruling on defendant’s motion to dismiss for want of evidence to sustain the bill; and another, that the court erred in making an order at a subsequent term amending the decree after the cause had gone off the docket.
The record shows that the bill was filed July 12,1893, and the answer December 29 following. Then an amended bill was filed, which, being demurred to, was withdrawn. The hearing was had on the bill, answer, replication and proofs, on March 30, 1894. During the hearing, the evidence of complainants being all in, the defendant moved to dismiss the bill, on the ground that there was no evidence to sustain the allegations therein, but no ruling was made on the motion. Complainants then proposed to amend the bill, stating the substance of it as it would be when completed, and showing that material changes were to be made in the allegations. The hearing then proceeded to its close. The minutes of the judge show: “March 30.-—Leave to compl’ts to amend bill; demurrer to amended bill; leave to compl’ts to withdraw amended bill; cause called for trial, and heard on bill, answer and replication, and taken under advisement.”
The proposed second amendment to the bill was not filed until after the hearing. When complainants proposed to file it and stated its substance, during the hearing, the court could not properly proceed to hear the cause made by it (even if it treated the amendment as of record) without first ruling the defendant to answer it. It presented an entirely different issue from that tendered by the original bill, charging that by the design or mistake of Josiah H. Adams and Harriet Adams the deed was improperly drawn, whereas the charge in the original bill was that the mistake in the deed was occasioned wholly by the attorney who drew it, and was an act of mere oversight on his part. The original bill charged mistake—the amendment, fraud ; and if the amendment was regarded as made, the issues should have been regularly presented by requiring the defendant to answer. Gage v. Brown,
Appellees contend that because the hearing proceeded appellant cannot now be heard to say she ought to have been required to answer the amended bill, and cite the cases of Miller v. Whittaker,
The decree was rendered at the August term, 1894, on September 8. The judge then entered on his minutes: “Sept. 11.—The court finds the issues for the plaintiffs, and finds they are entitled to the relief prayed in the bill.” About two months after the decree was rendered, and at still another subsequent term of court, on motion of complainants’ counsel the cause was again placed on the docket, and an order made amending the decree, by reciting that the cause was heard on the second amended bill. From the record it appears that it was heard “on the hill!’ and that the decree was rendered “on hill.” It also shows that none other than the original bill was on file during the hearing. It further appears that when the court amended the decree it refused to make an order showing that an amended bill was filed with leave, and it therefore never was, strictly speaking, a part of the record. Was it proper for the court, at a subsequent term, to amend the decree by making it appear that it was rendered on a second amended bill ?
The general rule is, that courts, while a cause is pending and parties before them, have control over the records and proceedings in a cause, and have jurisdiction over their judgments and final orders of a pending term, and may, while the cause is depending and the parties in court, amend or set them aside for cause. But after the term the power of amending is confined to clerical errors and matters of mere form, and these may, at any time, upon notice to parties in interest, and saving all intervening rights, be corrected so as to make the record conform to the fact. Dunham v. South Park Comrs.
As before stated, when complainants had introduced all their evidence and rested their casé, the defendant moved the court to dismiss the bill for want of evidence to sustain it. That was a proper motion, and should have been heard and sustained by the court. Its refusal to do so and permitting the hearing to proceed is assigned for error. The bill set forth that a deed had been made, by which it was intended to convey a life estate in certain lands to Harriet Adams, but by mistake of the scrivener who prepared the deed she was granted an estate in fee simple; “that the failure of the scrivener to insert the limitation was purely and wholly an act of oversight and omission on his part.” This was denied by defendant in her answer, and an issue thus regularly formed. None of the testimony introduced by complainants tended to prove that a mistake had been made by the scrivener, but, instead, that Harriet Adams and Josiah H. Adams, two of the parties to the deed, by deception, induced complainants to sign it. In other words, the complainants set forth one case in their bill and attempted to prove another on the hearing, placing their right to relief on entirely new ground. In McKay v. Bissett,
The decree of the circuit court will be reversed and the cause will be-remanded.
Reversed and remanded.