Girard Trust Co. v. Null

97 Neb. 324 | Neb. | 1914

Rose, J.

The purpose of the appeal is to reverse an order correcting a decree. The suit was brought to foreclose a mortgage. In the entry of the decree, which was in favor of plaintiff, the unpaid debt with the interest due, as computed by the trial judge and as stated in his findings, was $986. From a decree of foreclosure to collect that sum, defendants appealed to the supreme court. An affirmance followed. After the mandate had beén ¡received below, the affirmed decree was, on a motion by plaintiff, changed by the district court at a subsequent term to show that the amount due plaintiff was $1,127.97 instead of $986, as originally decreed. The increase is the difference between interest at the rate of 7 per cent, per annum, for the entire period and that rate until maturity of the debt, with interest'after maturity at the rate of 10 per cent, per annum until the date of the decree. From this modification defendant W. V. Hoagland prosecutes the second appeal in this case.

Plaintiff attempts to justify the modification after expiration of the term at which the decree was rendered, on the ground that the trial court had statutory power to make the correction: “For mistake, neglect, or omission of the clerk.” Code, sec. 602 (Rev. St. 1913, sec. 8207). On this proposition it is argued that a clerical mistake of a judge in computing interest is similar to that of a clerk, and that power to correct an error of' either exists, even after the erroneous judgment has been reviewed and affirmed by the appellate court. It is well settled by repeated decisions that relief under the statute cited is limited to the grounds enumerated therein, and that the statutory remedy does not extend to errors of law or to judicial acts.' Dillon v. Chicago, K. & N. R. Co., 58 Neb. 472; Ackerman v. Ackerman, 61 Neb. 72; Hitchcock County v. Cole, 87 Neb. 43; Meade Plumbing, Heating & Lighting Co. v. Irwin, 77 Neb. 385.

On the face of the decree, as it appears on the journal of the district court, error in the amount of interest recoverable does not appear. Neither the note nor the mortgage is copied on the journal. The entry made thereon contains nothing to indicate that interest was payable at an increased rate after maturity. Plaintiff does not assert that the clerk made any mistake. The decree of foreclosure includes an opinion of the presiding judge, findings of fact, and the final order itself. It expresses without omission the entire judicial action taken at the time it was rendered. Plaintiff could have asked the trial court to make the correction any time before expiration of the term at which the decree was rendered, while jurisdiction for that purpose existed. The mistake was subject to correction in the appellate court on cross-appeal. There was no clerical error in computation. Plaintiff’s motion presented a judicial inquiry into the rate of interest mortgagors had agreed to pay after maturity of the debt. The determination of that question required the trial judge to go beyond his former findings and judgment and to consider evidence not appearing in his minutes or on the journal. At the proper time, plaintiff should have either presented a form of decree or have examined the one rendered. In these respects the trial court was entitled to plaintiff’s assistance. The power to correct a journal entry to record the judgment actually rendered is not involved. The error in controversy was not within the enumerated remedies created by the statutory provisions invoked by plaintiff.

The modification of the affirmed decree is therefore reversed and plaintiff’s motion overruled.

Reversed.

Barnes, Fawcett and Hamer, JJ., not sitting.