Fuller & Co. v. Stebbins

49 Iowa 376 | Iowa | 1878

Beck, J.

I. No question is raised by defendants disputing tbe trial of tbe case and judgment rendered by the court, as claimed by plaintiff. The motion of defendant to strike has the effect of a demurrer in admitting the facts upon -which plaintiffs base their claim for relief. We are, therefore, re•quired to determine whether the court was authorized to sustain the motion upon the admitted facts that a judgment had been, three and a half years before, rendered in the case, but not recorded, through the neglect or oversight of the clerk.

1. judgment: entry nunc pro tunc. Courts possess the inherent authority to enter judgments nunc pro tunc, and time will not bar its exercise. The power may be rightfully exercised in this case, unless it be suspended by statute. Whether there be a statute having such effect is the only subject of inquiry in this case.

2. ___:___: code, § 3156. II. Defendants rely upon Code, § 3156, which limits proceedings to correct mistakes or omission of the clerk, or in obtaining a judgment, to one year. secti0n, when read and interpreted with the context, applies to the vacation or modification of judgments on account of mistake or omission of the clerk. A preceding section (3154, p. 3) provides for the right in such a ■case. Section 3156 prescribes the proceedings to secure the remedy. The consideration of these provisions leaves no doubt of the correctness of our conclusion.

In the case before us plaintiff does not ask for the vacation or modification of a judgment on account of a mistake or omission of the clerk. lie seeks the very reverse of this : the entry of a' judgment which was not spread upon the record through the omission of the clerk. The statute relied upon -by defendants’ counsel has no application to this ease.

The judgment of the Circuit Court is

Reversed.