Comanche Mining Co. v. Rumley

| Mont. | Aug 15, 1870

Symes, J.

This was an action for the recovery of certain quartz lodes and damages for detention. The cause was tried at the May term of the Deer Lodge district court, and a verdict found for the plaintiff, for possession of the property claimed, and one dollar damages. No judgment was rendered at said May term on the verdict. At the following September term a judgment was rendered against two of the defendants, Rumley and Bugher; and at the following December term, 1869, the judgment was amended by the court and rendered against all the defendants, Rumley, Bugher, Rea and Comly. The case comes up on appeal from the judgment roll, there being no statement, and the real question to consider is, did the court err in rendering judgment on the verdict at the next term, and in amending or changing the judgment and rendering it against the other two defendants at the next following term.

The suit was against four defendants, naming them personally, and describing them as the Rumley and Bugher Mining Company. The verdict named all the plaintiffs individually, and all the defendants individually, and found against them all for the possession of the quartz claim and one dollar damages. The clerk neglected his duty as prescribed by the 197th section of the Civil Code, and did not, within twenty-four hours, enter judgment on the verdict.

The authorities are plain to the effect, that the court can, after the term has expired, correct an error appearing on the judgment-roll or from the face of the papers, when it is a clerical error, or one arising from neglect of an officer of tile court. In Close v. Gillispie, 3 Johns. 527, the court say there can be no doubt that an amendment was proper, when judgment had been entered on a warrant of attorney, and the attorney had neglected to sign the plea, and his name was not inserted in the roll; and cite a case where an amendment, nunc pro tunc, was allowed after lapse of several terms, where the clerk who taxed the costs had neglected to sign the roll; also refer to an English case, where the court allowed amendments, rendered necessary by neglect of attorneys, saying that attorneys were officers of the court. In the case of The President and Directors of Mechanics’ Bank v. Minithorn, 19 Johns. 245, the court say they have no doubt of their power to set aside a satisfaction of a judgment, and allow another computation of the amount due and amendment of the judgment, when it appeared that the mistake was one of the clerk of the court, and the amendment was ordered. The cases of Swain v. Neglee, 19 Cal. 127" court="Cal." date_filed="1861-07-01" href="https://app.midpage.ai/document/swain-v-naglee-5434844?utm_source=webapp" opinion_id="5434844">19 Cal. 127, and Leviston v. Swan and others, 33 id. 485, are to the same effect. In the latter case the decree did not mention who was liable for the deficiency, so the clerk could not, on the coming in of the sheriff’s report on foreclosure sale, enter up judgment for the deficiency; and the court allowed the amendment by inserting the name of the party liable for the deficiency after the term when judgment was rendered.

Under these authorities it is clear that the court below had the power to render judgment at the next term on the verdict, when the clerk had neglected to do so ; and to thereafter amend the judgment by inserting the names of all the defendants named in the verdict of the jury.

Appellants contend that the court erred in rendering judgment at any time against Rea and Comly, because all the defendants were sued as a company, and the jury, by a special finding, found that Rea and Comly were not members of the company. But the defendants were all sued by name for ouster of possession and trespass to property ; the additional allegation that they were a company, and describing them as such, cannot affect the verdict or judgment when the jury found them all individually guilty of the acts complained, in the general verdict, although some of them were found not to be members of the company.

Appellants further except to the ruling of the court, in refusing some instructions offered by defendants. All the law applicable to the case seems to be contained in the instructions given by the court on its own motion, and at request of plaintiffs. Those refused are in effect a repetition of others given, or are based on the theory that defendants could obtain affirmative relief in the action.

The judgment below is affirmed.

Exceptions overruled.