Lombard v. Wade, 61 P. 856

Lombard v. Wade

61 P. 856 | Or. | 1900

Mr. Chief Justice Bean,

after making the foregoing statement of the facts, delivered the opinion.

1. The motion of Mrs. Lombard, made in February, 1900, for an order of redistribution of the funds collected by the receiver, and for the delivery to her of the undivided half of 301 Court Street, was properly denied on account of her laches, if for no other reason. The original order of distribution and for the discharge of the receiver was made in September, 1898, at which time the receiver’s accounts were examined, settled and approved. At that time no request was made of the court, so far as the record discloses, for an order directing the receiver to turn over the property to any one. No appeal has been taken from such order, nor was any objection made thereto by Mrs. Lombard until almost a year later, when the petition was filed in this court for an order recalling the mandate. It seems to us that under these circumstances she is not now in a position to insist that the order of September 20,1898, be modified or disturbed. It was made in obedience to the mandate of this court, without objection by any of the parties, so far as we are advised; and the fund has been distributed in accordance therewith, except the amount apportioned to the defendant Lombard. It would, no doubt, have been proper for the court, at the time it made the order discharging the receiver, to have directed him to deliver possession of the property to the party entitled to it; but no objection was made on account of its failure to do so, either to the court below or by appeal, and it is now too late to question the validity of such order.

2. It is argued that it did not operate to discharge the receiver, because it was conditioned upon his subsequently filing receipts from the distributees, which he was unable to do, because Mrs. Lombard refused to re*432ceive and- receipt for the portion directed to be paid to her. But, with the acquiescence of all the parties, the receiver ceased to exercise any control over the property and ceased to collect the rents and profits thereof, so that, while the order may in some sense be informal, yet its effect was to discharge the receiver and exonerate him from any further liability as such; and if Lewis McArthur La Dow wrongfully obtained possession of the property, as Mrs. Lombard claims, it was due largely to her own negligence.

3. The alleged nunc pro tunc order of March 22 is, however, clearly void, and cannot affect the rights of the parties in any way. There is no finding that such an order was in fact made on September 20, 1898, and that the entry thereof was inadvertently omitted by the clerk; but it seems to be an order made on the twenty-second of March, 1900, which the court directs to take effect as of the twentieth of September, 1898, and, clearly, the court had no power or authority to make any such an order. It was apparently an attempt to amend the order of September 20. And Mr. Black says : “The power of courts to order the entry of judgments nunc pro tunc is not to be used for the purpose of correcting errors, omissions or mistakes of the court. It cannot direct a proper judgment to be thus entered, when the fault is that the first judgment is one which should not have been entered in the case, or is imperfect or improper. * * * Hence the court cannot at a subsequent term change its judgment to one which it neither rendered nor intended to render, nor supply an order which it might or ought to have made, but wholly omitted to make 1 Black, Judgm. § 132. The order gf March 3, 1900, will therefore be affirmed, but the nunc pro tunc order of March 22 will be vacated and held for naught. This conclusion, however, will be without prejudice to any further pro*433ceedings by Mi's. Lombard for an accounting, or to assert her claim to the property in controversy; and neither party will recover costs on the appeal. Reversed.