111 P. 284 | Cal. Ct. App. | 1910
This is an appeal from an order granting a motion to amend a judgment theretofore rendered and entered.
Upon a hearing had on February 28, 1908, of defendant's motion to dismiss the action for want of prosecution the court, as disclosed by the minute entry of the clerk, ordered the cause dismissed without prejudice. Thereafter, on August 26, 1908, the court rendered judgment wherein it was recited that the dismissal was by consent of parties and omitted to state that such dismissal was without prejudice. This judgment *173 was signed by the judge of the court and duly entered by the clerk on August 28, 1908.
Thereafter, more than six months having elapsed from the rendition and entry of such judgment, plaintiff, pursuant to notice thereof, made a motion to have the same amended, the ground therefor being that the judgment so rendered did not conform to the order of dismissal made February 28, 1908, as shown by the minute entry of the clerk, in that it omitted to state that such dismissal was had without prejudice and recited that it was made by agreement of the parties. This motion was based upon the records and files in the action and upon certain affidavits presented. At the hearing thereof the court granted the motion, and on March 22, 1909, ordered the judgment amended in accordance with the form and substance of a proposed judgment, copy of which was attached to the notice of motion and served upon defendant.
The court erred in granting this motion and in making the order from which defendant appeals.
No doubt exists as to the power of the court to allow amendments, regardless of the lapse of time, where the record as entered by the clerk fails to conform to the judgment rendered by the court. (Freeman on Judgments, sec. 70;Egan v. Egan,
The order appealed from is, therefore, reversed.
Allen, P. J., and James, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on September 26, 1910, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 27, 1910. *175