Fay v. Stubenrauch

75 P. 174 | Cal. | 1904

This action was brought to foreclose a mortgage executed to plaintiff by defendants, H. V. Stubenrauch. It was alleged in the complaint that the other defendants, James O'Reilly and one Mrs. M. Quinn, claimed some interest in the mortgaged premises; that the said Mrs. M. Quinn was in possession thereof, cutting and destroying trees, and threatening to continue to do so, and an injunction was prayed, prohibiting her from the commission of such acts. Summons was issued in said cause, and served on all the defendants, including Mrs. M. Quinn, and the defaults of all the defendants, including said Mrs. M. Quinn, were duly entered.

Thereafter a decree of foreclosure was entered against the said H. V. Stubenrauch, James O'Reilly, and one Mrs. A.M. Quinn, foreclosing all their interest in said premises, and as to the said Mrs. A.M. Quinn, enjoining her from cutting and destroying any trees upon said premises.

This decree was duly entered on April 24, 1901. On May 16, 1901, an appeal was taken by Mrs. A.M. Quinn from said decree.

On May 21, 1901, after such appeal was taken, the court, on motion of the attorney for plaintiff, made an order reciting that there had been a clerical misprision in the decree of foreclosure in the insertion of the initial "A" before the initial "M" in the name of Mrs. M. Quinn, the defendant in said action, and ordered the decree corrected by striking out such initial "A" wherever it appeared therein. A stipulation in the transcript shows that such correction was made by the clerk as directed by the court. The effect of the order is, that the decree of foreclosure now stands against Mrs. M. Quinn, and the name of Mrs. A.M. Quinn nowhere appears therein.

Appellant contends that, notwithstanding such correction, the decree of foreclosure should be reversed; that the order of the lower court was, in effect, an amendment of the decree, and being made after the court had lost jurisdiction of the cause by appeal, was void.

There is no question but that if an appeal had not been taken, the lower court would have had the power to make the correction.

It is quite manifest that the use of the initial "A" in the name of the defendant, so as to make her name read Mrs. A.M.Quinn, instead of Mrs. M. Quinn, was merely a clerical error in the decree. Mrs. A.M. Quinn was not a party to the suit, but Mrs. M. Quinn was. The latter was named as defendant, had been served with summons and suffered default, and a decree might properly be taken against her. All these matters appear in the record, and conclusively show that the person against whom the decree was intended to be entered was Mrs. M. Quinn, not Mrs. A.M. Quinn, who, as far as the record is concerned, was an entire stranger to the proceedings.

Whenever it is apparent upon the face of the record, that the error to be corrected consists of a clerical misprision, the court has always inherent power to correct it. (Estate ofSchroeder, 46 Cal. 316; Fallon v. Brittan, 84 Cal. 511; SanJoaquin L. and W. Co. v. West, 99 Cal. 347; Chicago Clock Co. v.Tobin, 123 Cal. 378.)

Nor is the right of the lower court to amend suspended or impeded by an appeal, where an amendment does not affect any substantial rights of the appellant, and consists of the correction of a clerical mistake appearing upon the face of the record. It is true that the court by the appeal loses jurisdiction of the cause, for the purposes of the appeal, but it does not lose jurisdiction of its records. These remain within its physical control and custody, and as to the error suggested the court had a right, as well after the appeal is taken, as before, to amend it. (Black on Judgments, sec. 162; Freeman on Judgments, sec. 73; People v. Murback, 64 Cal. 372.) Certainly no substantial right of the appellant was affected by the amendment. In fact, it accomplished all that she could hope for on this appeal. Her complaint here is, that the decree against her was void. This is true, but as the correction of that decree relieved and freed her from all liability under it, there is nothing left of which she can complain. The decree now stands against Mrs. M. Quinn, the party to the action, against whom, as appears from the record, it should have been originally entered. If this court should reverse the judgment, as appellant contends it should, such reversal would confer no benefit upon the appellant; it would give her nothing she has not already obtained through the correction of the decree by the lower court, but, on the contrary, such reversal would operate to the advantage of the party against whom apparently the decree should have been originally and it is now entered — the defendant, Mrs. M. Quinn — who is not now before us asking for any relief. Appellant cannot be concerned in the matter any further than to the extent that her own interests are involved.

We are satisfied that the lower court, notwithstanding the appeal, had a right to correct the apparent clerical error in the decree; that such correction has relieved appellant entirely from its operation; that the error she complains of here has been effectually cured thereby, and that the judgment, as far as it is attacked by her on this appeal, should be affirmed.

As this error, until it was corrected, substantially affected appellant, and was not corrected until after her appeal was taken, we think that she should, therefore, be allowed her costs on appeal.

The decree appealed from is affirmed, with costs in favor of appellant.

McFarland, J., and Henshaw, J., concurred.