Goodrich v. Conrad

28 Iowa 298 | Iowa | 1869

Beck, J.

1. comra-sr appeai." I. The appellant assigns as error the order of the District Court, overruling his motion to dismiss the appeal, and presents that question for our consideration. The County Court overruled plaintiff’s motion, upon objections thereto, which struck at the very right of plaintiff to the relief claimed, as well as the authority of the County Court to grant it. Upon the case made in the motion, we think the plaintiff was entitled to the relief. He asks in the motion that the record be so corrected as to show certain facts transpiring before the court, of which record should have been made. The failure to enter them of record was an error or omission which ought to have been corrected.

g__correetion of record. The fact that the judge, by whose omission the record fails to show these facts, no longer held the office, did not deprive the court of the power to grant the re],[e£ The court had the same control of its records, made by a former judge, as it had of the record of the proceedings of the judge who then occupied the bench. The law considers the omission as the act of the :ourt; the same court that omitted to make the particular entries was asked to make the correction. The order overruling plaintiff’s motion affected his right to relief, and was an intermediate order affecting the decision upon the merits, as it, in effect, denied relief. From such an order an appeal is clearly allowed by section 267 of the Bevision. '

It is argued, that, inasmuch as the question decided by the County Court involved a question of law only, plaintiff’s remedy was not by appeal. The conclusion, from the facts stated, cannot be admitted. The objection to the motion in the County Court was in the nature of a demurrer, and admitted the facts alleged as grounds for the relief asked. The County Court, upon such admitted facts, ruled that it had no jurisdiction to correct the errors in its records made by a former judge, and dismissed tbe motion. This is an intermediate order, and involved the merits of a matter affecting plaintiff’s rights, and necessarily denied relief. It may be reversed upon appeal, being within the provisions of section 267.

3 nunc pro tunc entry. II. It is argued, that, inasmuch as no entries of the facts had been made in the records of the County Court, a rec-01’d them, as asked in plaintiff’s motion, WOuld not be the correction, but the making, of a record. This may be admitted, and yet we cannot deny that the court possesses that power. Certain things were done by the court: the administration of an oath, and permission given to prosecute a suit in the District Court, both proper to be made of record. No evidence of these acts existed in the record of the court, or are otherwise preserved. It is clearly within the power of the court to supply the omission. Shepherd v. Brenton, 20 Iowa, 41; The State v. McComb, 18 id. 43; Julian Gas Light Co. v. Hurly, 11 id. 520.

Such corrections or amendments ars often made, and are called mono pro tune entries. Of course they must be limited to supplying such entries as have been omitted through oversight or negligence, and cannot be made to alter or expunge a record.

III. We are of the opinion that the evidence before the District Court fully supports its judgment, which is denied by defendant, and this denial made a ground of objection. Our reasons for this conclusion it is not necessary to give, as it would involve simply a discussion of the evidence.

Affirmed.