24 Ind. App. 93 | Ind. Ct. App. | 1900
Appellant as plaintiff brought this action to enforce a material man’s lien upon a certain brick building, as well as upon the leasehold interest in the land upon which it was situated of appellee, John M. Foreman. TJpon the trial the court rendered judgment, and ordered foreclosure of appellee Foreman’s leasehold interest; that the lien be foreclosed as to the building; that the purchaser be granted the right to remove the building within ninety days from the date of sale. Appellee Foreman filed his motion for a new trial during the term at which judgment was rendered. This motion was overruled at the following (October) term. At the December term, 1897, appellee Foreman filed his motion to modify the original decree, which motion was, at the January term, 1898, sustained. The decree was modified
Before entering upon a decision of the question, appellee asks this court to decide whether the appeal is within time. The judgment was rendered October 1, 1897. It was modified January 20, 1898. The appeal was perfected January 7, 1899, within one year from the date of the modification of the judgment, at which date the time for appeal began to run. Pursley v. Wickle, 4 Ind. App. 382, and authorities there cited.
It is argued by appellant (1) that the trial court had no authority to modify the original decree in the particular complained of after the term at which it was entered; (2) if it had authority, it was not properly exercised.
It is settled law in this State that courts have power to correct mistakes and supply omissions in their records whenever and wherever the records supply the means of making such corrections or supplying such omissions. Pursley v. Wickle, supra; Miller v. Royce, 60 Ind. 189; Reily v. Burton, 71 Ind. 118; Chissom v. Barbour, 100 Ind. 1. This power is inherent in courts. Black on Judg., §161; Free
Counsel for appellee refer to the familiar rule that all reasonable presumption will be indulged in favor of the ruling of the trial court, and insist that, as the evidence upon which it was made is not in the record, it will be presumed that the court had sufficient reason for modifying the decree. Sumner v. Cook, 12 Kan. 162; Knight v. State, 70 Ind. 375; Elliott’s App. Proc., §725.
In Sumner v. Cook, supra, the modification w$s made at the same term ,tlie judgment was rendered. In Knight v. State, supra, it was made at an adjourned session, which the court held, in legal contemplation, to be the same term at which the judgment was entered. In Elliott’s App. Proc., supra, the rule is stated and the foregoing cases are cited.
This motion asked the court, — (1) that the decree declare plaintiff’s lien to be upon the leasehold interest of the defendant in said real estate, and not upon the building erected by him; (2) that that part of the decree taxing defendant with costs be stricken out; (3) that that* part of the decree ordering the sale and removal of the building erected by this defendant be stricken out. The motion does not purport to ask the correction of a clerical error, but what was deemed a judicial error. The record does not disclose that any evi
Judgment reversed, with instructions to the trial court to overrule the motion to modify, and for other proceedings not inconsistent with this opinion.