No. 2676 | Wash. | Jan 8, 1898
The opinion of the court was delivered by
This is a suit commenced by plaintiffs in the superior court of Jefferson county to correct and amend a judgment and decree rendered in said court on the 31st day of October, 1895, in which action Henry Bash, Susan W. Bash, B. M. Long, Clementine B. Long and Francis L. Bash were plaintiffs, and Charles Eisenbeis and Eate Eisenbeis were defendants. The bill of complaint, which is entitled the petition, sets.forth thirteen findings of fact filed in the original c°ause, the conclusions of law, and decree which is here sought to be vacated. The decree, after a recitation of the appearance and motion of counsel for plaintiffs for judgment in accordance with the findings of fact and conclusions of the court theretofore made and filed, decrees and adjudges, that plaintiffs have and recover from defendants and each of them the sum of $3,237.03, with interest thereon, and costs and disbursements, and further adjudges and decrees that plaintiffs are owners of and enti
The complaint in this cause alleges that the judgment and decree complained of is void in that it is in favor of Henry Bash, Susan ~W. Bash, B. M. Long, Clementine B. Long and Brands L. Bash, plaintiffs in the original cause, jointly, and the record shows that Henry Bash and Susan W. Bash, and each of them, had no interest in the subject matter of the action, that the findings of fact on which the decree was based show there was no interest in said plaintiffs Bash and Bash, and that the findings of fact also show that B. M. Long, Clementine B. Long and Brancis L. Bash jointly are entitled to judgment against Charles Eisenbeis and Kate Eisenbeis in the sum of $3,596.03, when the decree only adjudged $3,237.03.
It is further alleged that on the 14th day of August, 1888, Henry Bash held a bond for the conveyance of two hundred acres of land more or less, and on that day Henry Bash and defendant Charles Eisenbeis entered, into a certain agreement in writing, by the terms of which Eisenbeis agreed to pay $100 per acre for the tract and expenses necessary in transferring, platting, surveying and selling the same, to be thereafter sold with the consent and approval of Henry Bash and in such manner as they should mutually agree; that after payment for said land, Charles Eisenbeis should receive the proceeds from the sale thereof to the amount of the purchase price and all expenses incurred by him; then the balance of all the moneys arising from the sale should be,divided equally between himself and Henry Bash, share and share alike; that under the terms of said agreement Eisenbeis paid the purchase price to Bash and received a deed of conveyance, which had been procured by Bash, of the land theretofore held
1. Plaintiffs maintain here that the judgment sought to be vacated was inadvertently made and entered and that such inadvertence is apparent from the face of the judgment roll, including the findings; that it failed to decide the matters in controversy between the parties, and that it was entered by mistake and does not express the decision of the court; and it is contended that the superior court may, at any time its attention is called to the fact, correct a mistake in its records, and that the decree should conform to the findings of fact and conclusions of law. To support this contention plaintiffs cite Kohn v. Lovett, 43 Ga. 180; Brewer v. Jones, 44 Ga. 71" court="Ga." date_filed="1871-07-15" href="https://app.midpage.ai/document/brewer-v-jones-5555812?utm_source=webapp" opinion_id="5555812">44 Ga. 71; Crim v. Kessing, 89 Cal. 478" court="Cal." date_filed="1891-06-18" href="https://app.midpage.ai/document/crim-v-kessing-5445322?utm_source=webapp" opinion_id="5445322">89 Cal. 478 (23 Am. St. Rep. 491, 26 P. 1074" court="Cal." date_filed="1891-06-18" href="https://app.midpage.ai/document/crim-v-kessing-5445322?utm_source=webapp" opinion_id="5445322">26 Pac. 1074); 2 Freeman, Judgments, § 500a.
Mr. Freeman, in the section above cited, says:
“ Mistakes of fact, whether made by the court or by one of the parties, have been successfully employed as grounds for obtaining the interposition of courts of equity, and securing.the relief of the party injured by the mistake.”
But the authorities cited by plaintiffs go to the correction of mere clerical errors or misprision, as in the case of Wilson v. Boughton, 50 Mo. 17" court="Mo." date_filed="1872-03-15" href="https://app.midpage.ai/document/wilson-v-boughton-8003534?utm_source=webapp" opinion_id="8003534">50 Mo. 17, where a mistake was made
But Mr. Freeman in his work on Judgments (Vol. 1, § 72, p. 100), says, citing Doane v. Glenn, 1 Colo. 456:
“ That any error or defect in a record which occurs through the act or omission of the clerk of the court in entering, or failing to enter of record, its judgments or proceedings, and is not an error in the express judgment pronounced by the court in the exercise of its judicial discretion, is a mere clerical error, and amendable, no matter in how important a part of the record it may be;”
and he also says further, § 500a:
“ It seems to be well established by the authorities that a mistake in calculating the amount due by which the judgment was entered for a wrong sum may be corrected in equity. An error in computation is not necessarily attributable to negligence, for ‘ the most careful and expert calculators sometimes make mistakes.’ ”
2. The petition to vacate the decree does not exhibit the entire record upon which the decree was based, and, if there be any seeming inconsistency between the portions of the record pleaded, they must be presumed to be explained
We agree with counsel for the respondents that the decree must be supported by the findings and conclusions, but that it does not always necessarily follow that the decree shall be as broad as the findings and conclusions are. The contention of plaintiffs here is that the decree ■ was not broad enough, and that it did not adjudge finally the rights of the respective plaintiffs, but we have not the pleadings to. point out what rights were claimed by the respective plaintiffs . The reformation of the judgment demanded by the plaintiffs is a material change in substance of the judgment sought to be vacated and not merely the correction of a misprision, or negligent clerical entry.
3. More than a year elapsed before plaintiffs took any action with reference to the judgment sought to be vacated. No motion was made as provided for in section 221, 2 Hill’s Code (Bal. Code, § 4953).
Mr. Freeman, in discussing the statutes which authorize a motion to vacate judgments after the term when rendered, and the effect of such statutes upon proceedings in equity, says:
*428 “ Neither do these statutes preclude a party, in a proper case, from obtaining relief in equity, after the time for applying for relief under these statutes ‘ has elapsed, provided proper reasons are shown for not making such applica-
The judgment of the superior court is affirmed.
Scott, C. J., and Dunbar, Gordon and Anders, JJ., concur.