199 P. 243 | Mont. | 1921
prepared the opinion for the court.
This is an action for damages for personal injuries. The record shows that on November 12, 1918, the jury returned
It is further disclosed by the record that, during the argument of counsel for the plaintiff in support of plaintiff’s motion to set aside the verdict, Hon. E. M. Lamb, presiding judge, stated that he knew that one of the five, namely, Juror T. F. Hickey, when his name was called, had voted “Yes,” but that thereafter he had followed up the said response by some muttered words which the court did not get. No controversy arises over the vote of Jurymen Murphy, Sullivan, Carron and Burke upon the poll of the jury, and only the vote of Juryman T. F. Hickey is in issue upon this appeal. Defendant appeals from the order setting aside and striking the verdict from the files and annulling and striking from the files the judgment.
Ruling Case Law lays down the general rule that: “In the exercise of this power of amendment, the court is not, however, authorized to do more than to make its records correspond to the actual facts, and cannot, under the form of an amendment of its records, correct a judicial error, or make of record an order or judgment that was never in fact given.” (7 R. C. L., see. 47, p. 1020.)
Corpus Juris enunciates substantially the same doctrine thus: “In case of an omission or error in the record the power exists in the court to amend such record so that it shall conform to the actual facts and truth of the case; but a court cannot amend its record to correct a judicial error, or to
The supreme court of Massachusetts condemned similar action of the lower court upon a record almost identical with the one before us as follows: “The power of a court to correct clerical errors in its records arising from misprision of the clerk, improvidence of jurors, failure of commissioners to express their decision, or otherwise, is ample. [Citations.] But no clerical error appears here. There is no doubt that the docket memorandum of dismissal, minuted as the case was called, was made intentionally, although it might not have been made if the whole record respecting the case had been in the mind of the court. But that which was done was intended to be done, and the entry of judgment of dismissal in July, 1899, was the exact entry intended to be made. There was no clerical error. There was no failure to make the written record correspond with the decision actually made.
“The facts as they now appear did not ■ authorize the action of the court in June, 1899, in dismissing the ease, nor in entering judgment in the following July. But such action was within the jurisdiction of the court. That it was done is attested by the records. The record of the clerk imports verity in this regard. That there were facts in existence which made it error as matter of law to enter the particular judgment is nothing more than happens in many instances where judgments of lower courts are reversed. There were ample remedies at hand, if seasonably taken, to protect the plaintiff. Perhaps he might have appealed; he certainly might have petitioned for relief through one of the channels afforded by the statutes.” (Karirick v. Wdmore, (1912), 210 Mass. 578, 97 N. E. 92.)
The supreme court of Oregon approves the general rule in the following language: “A journal entry is the prescribed memorial of what the court actually did. It must speak the real truth. If the court did not in fact make an order on the earlier date, one cannot be supplied by any subsequent
In California, by an elaborate digest of authorities, the rule has been adopted thus: “Every court of record has the inherent right and power to cause its acts and proceedings to be correctly set forth in its records. The clerk is but an instrument and assistant of the court, whose duty it is to make a correct memorial of its orders and directions; and, whenever it is properly brought to the knowledge of the court that the record made by the clerk does, not correctly show the order or direction which was in fact made by the court at the time it was given, the authority of the court to cause its records to be corrected in accordance with the facts is undoubted. (In re Wight, 134 U. S. 136, 33 L. Ed. 865, 10 Sup. Ct. Rep. 487 [see, also, Rose’s U. S. Notes]; Balch v. Shaw, 7 Cush. 282; Fay v. Wenzell, 8 Cush. 315; Frink v. Frink, 43 N. H. 508; Grim v. Kessing, 89 Cal. 486, 23 Am. St. Rep. 491, 26 Pac. 1074.) In the exercise of this power the court is not, however, authorized to do more than to make its records correspond to the actual facts, and cannot, under the form of an amendment of its records, correct a judicial error, or make of record an order or judgment that was never in fact given.” (Kaufman v. Sham, 111 Cal. 16, 52 Am. St. Rep. 139, 43 Pac. 393; People v. Ward, 141 Cal. 628, 75 Pac. 306.)
In Louisiana, the court says regarding correction of minutes that, not being errors of substance, correction could be made. (State v. Bouline, 107 La. 454, 31 South. 885.) The question whether an amendment shall be allowed is usually one of fact for the court, yet the question whether it can be allowed is one of law. (Town of Jaffrey v. Smith, 76 N. H. 168, 80 Atl. 50A-509.)
From the foregoing, and many other authorities, which we deem it needless to cite, the rule is almost universal that the
The eminent counsel for appellant, by elaborate and exhaustive brief and oral argument, assign error of the court (1) in considering the affidavits of jurymen in impeachment of their own verdict, (2) in setting aside the verdict, and (3) annulling the judgment. "We think the assignments of error are meritorious. The method of attacking the verdict adopted by respondent has been so repeatedly condemned by this court as to require no further consideration. (State v. Beesslcove, 34 Mont. 41, 85 Pac. 376; Harrington v. Butte, Anaconda & Pac. Ry. Co., 36 Mont. 478, 93 Pac. 640; Lish v. Martin, 55 Mont. 582, 179 Pae. 826.) The circuitous method of correcting the court minutes is of no avail to accomplish the well-defined purpose of the respondent.
For the reasons herein stated, we recommend that the order of the court correcting its minutes, setting aside the verdict, and annulling the judgment, be reversed, and that this cause be remanded to the district court, with directions to vacate and set aside said order, and reinstate the judgment in favor of defendant.
For the reasons given in the foregoing opinion, it is ordered that the order of the court correcting its minutes, setting aside the verdict, and annulling the judgment, be reversed and the cause remanded to the district court, with direc
jReversed and remanded.
Rebearing denied July 2, 1921.