Bostwick v. Van Vleck

| Wis. | Apr 6, 1900

Maeshall, J.

The only assignment of error argued on the appeal of defendant Van Vleek is that the sale was prematurely made; that the corrected judgment was a new judgment, and that the plaintiff should have waited one year before causing the property to be sold under it, as required by sec. 3162, Stats. 1898.

The amendment did not make a new judgment. It merely corrected the written evidence of the judgment actually rendered so as to conform to the truth. The judgment pronounced by the court was what governed. That was not changed by the amendment. The difficulty grew out of a mere clerical error which it was competent for the court to correct in accordance with the facts, and without regard to time, since the rights of third persons had not intervened and there were no equitable considerations; as regards any party to the record, standing in the way.

The power of the court over such matters was very recently fully considered by this court in Packard v. Kinzie Ave. Heights Co. 105 Wis. 323" court="Wis." date_filed="1900-01-09" href="https://app.midpage.ai/document/packard-v-kinzie-avenue-heights-co-8186509?utm_source=webapp" opinion_id="8186509">105 Wis. 323. Most of the cases previously decided here, touching the question, will be found there cited, together with references to elementary works on the subject.

The test to be applied in determining whether an error in a judgment is of a judicial character, or a mere clerical mistake which may be corrected in the court where it was made at any time, saving intervening rights of third parties and with due regard to equitable considerations, is whether the error relates to something that the trial court erroneously omitted to pass upon or considered and passed upon erroneously, or a mere omission to preserve of record, correctly in all respects, the actual decision of the court, which in itself was free from error. If the difficulty is found to be of the latter character, it may be remedied as a mere clerical mistake, which will not have the effect to change the judgment pronounced in the slightest degree, but merely to correct the record evidence of such judgment.

In the light of the test above mentioned, it will be readily seen that the position of appellant Van Vlech is unsound. The judgment was ripe for a sale of the mortgaged property as soon as the correction thereof was made. It follows that the order confirming the second sale, and all the proceedings in regard thereto, were free from error so far as relates to the question above discussed.

The order setting aside the deficiency judgment first entered was proper. The foreclosure judgment authorized a judgment for deficiency only in case a sale of the entire mortgaged premises failed to realize a sufficient amount to satisfy the mortgage indebtedness. The sale of a part of the mortgaged premises having been set aside, the condition precedent to a deficiency judgment did not exist. Therefore the order setting aside such judgment necessarily followed the order setting aside the sale.

By the Oow't.— The order confirming the sheriff’s report of sale, and the judgment for deficiency, are affirmed on the appeal of defendant Van Vlech; and the order setting aside the first deficiency j udgraent is affirmed on the appeal of plaintiff.