111 Cal. 16 | Cal. | 1896
An amended complaint was filed in this action May 16, 1890, to which a demurrer was filed by the defendants, Herrlich and Hanlon, May 23d, and by the defendant Davis, June 4th. October 10, 1890, the demurrer of Herrlich and Hanlon came on for argument, and was sustained by the court, and thereupon the clerk made the following entry in his minutes under the title of the cause: “In this case the demurrer of the defendants, Julie Herrlich and John F. Hanlon, to the second amended complaint coming on regularly this day to be heard, it is by the court ordered, on motion of counsel for said defendants, that said demurrer be and the same is hereby sustained. It is further ordered by the court that this cause be and the same is hereby dismissed.” Thereafter, on the 14th of March, 1894, a judgment was entered by the clerk in accordance with said
Every court of record has the inherent right and power to cause its acts and proceedings to be correctly set forth in its records. The clerk is but an instrument and assistant of the court, whose duty it is to make a correct memorial of its orders and directions; and, whenever it is properly brought to the knowledge of the court that the record made by the clerk does not correctly show the order or direction which was in fact made by the court at the time it was given, the authority of the court to cause its records to be corrected in accordance with the facts is undoubted. (Matter of Wright, 134 U. S. 136; Balch v. Shaw, 7 Cush. 282; Fay v. Wenzell, 8 Cush. 315; Frink v. Frink, 43 N. H. 508; 80 Am. Dec. 189; Crim v. Kessing, 89 Cal. 486; 23 Am. St. Rep. 491.) In the exercise of this power the court is not, however, authorized to do more than to make if s records correspond to the actual facts, and cannot, under
Whether the clerk has correctly recorded an order made by the court, or whether an amendment of the
The court is not precluded from correcting the entry merely because the “record” does not show that it is itself incorrect. The rule at common law, that the record can be amended only when there is something in the record to amend by, was applied when it was sought to amend a judgment at a term of the court subsequent to that in which it had been signed and enrolled, but it has no application to the amendment of matters that do not form a part of the judgment-roll or “record.” Until the entry of the judgment the record was in the breast of the court. Afterward it was in the roll-It was only the “record” thus made up which imported absolute verity. “ The making up of the judgment-roll is the equivalent under our practice of the entry of rec
This power of a court to amend its records so that they may correspond with the fact, and correctly express what was done by the court, may be exercised at anytime. (Crim v. Kessing, supra; Egan v. Egan, supra; Frink v. Frink, supra; Balch v. Shaw, supra; Fay v. Wenzell, supra; Hart v. Reynolds, 3 Cow. 42, note.) “ No lapse of time will divest the court of its power or absolve it from its duty to supply deficiencies in the records of its own proceedings where justice and the truth of the case require it.” (Lewis v. Ross, 37 Me. 230; 59 Am. Dec. 49.) In Cradock v. Radford, 4 Mod. 371, the court ordered the roll to be brought in and amended twenty years after the judgment had been signed. In Frink v. Frink, supra, the amendment was allowed after a lapse of tvrelve years, and in Balch v. Shaw, supra, a still longer time had intervened between the entry and the amendment. In Crim v. Kessing, supra, the court in January ordered a nunc pro tunc order to be made, as of the previous March, prior to the trial of the cause. In Rousset v. Boyle, supra, the court permitted the amendment several years after the entry of the judgment, and after it had been affirmed in the supremo court.
In view of the foregoing principles the order of the superior court must be affirmed. From the affidavit of the shorthand reporter it appeared that when the demurrer was called for argument there was no appearance on behalf of the plaintiff, and that the demurrer was sustained on the motion of the attorney for the demurring party without argument, and that when, upon the direction of the court that the demurrer be sustained, the attorney asked for judgment, the court replied: “ The demurrer is sustained. I haven’t allowed . any
It may be conceded that the remarks of the court are not entirely free from ambiguity, but, for the purpose of resolving this ambiguity and determining what order was then made, the court was justified in holding that the final statement, “ I simply sustain the demurrer here,” was to be taken as qualifying the prior announcement to the attorney that judgment would be entered dismissing the action, if he desired it, and as declaring to him that before such order would be entered some additional motion must be made by him. In addition to this affidavit there was before the judge at the hearing of the present motion the calendar and note-book kept by him, upon which was the following entry written by him: “Kaufman v. Shain, et al. Demurrer of J. F. Hanlon and Julie Herrlich to second amended complaint. Demurrer sustained. Action dismissed, if counsel are present.” Through the words “ if counsel are present” a pencil mark had been drawn, but it did not appear when or by whom it was drawn. There was another demurrer to the complaint in behalf of other defendants pending before the court, and none of the counsel for either the plaintiff or any other party to the action was present. This showing on behalf of the respondent was sufficient to sustain a finding by the judge that there had been no order made by him directing a dismissal of the action, and to authorize the minutes to be corrected accordingly. The plaintiff presented no evidence contravening the above showing, and intro, duced only the minute entry itself and the judgment-roll containing the judgment subsequently entered thereon.
That portion of the order setting aside the judgment must also be affirmed. Such an order necessarily followed "the order amending the. minute entry. The objection upon the ground of lapse of time has no application, for the reason that the motion to amend, as
The order is affirmed.
Yak Fleet, J., and Garouttb, J., concurred.
Hearing in Bank denied.