Lundberg v. Single Men's Endowment Ass'n

| Minn. | Oct 26, 1889

Gileillan, C. J.

The appellant claims there should be a reversal for two reasons: First, because a prior appeal with a stay-bond stayed proceedings in the action at the time the judgment in this appeal was entered; second, because the findings of the court and direction for judgment did not authorize the clerk to enter judgment naming a receiver, no receiver being named in the findings or direction for judgment. Assuming the facts to be as assumed by the appellant, there is no matter of error such as this court reviews in those points. If the clerk entered judgment when proceedings were stayed, or if, in entering judgment, he inserted a provision not justified by the direction for judgment*, it would be mere clerical irregularity, the remedy for which, in the first instance, should be by application to the court below. We try any alleged error by the record certified to us. The court below, upon an allegation of irregularity of its clerk, may take evidence of facts not of record, and, in order to effect justice, disregarding mere technicalities, it may order matter of record to be supplied mino pro time. As for instance, in this ease, if the direction for judgment did not mention the name of the receiver, the court below might cure the irregularity by filing a direction naming the receiver mine pro tunc. It is for considerations of this character that, before this court will consider alleged clercial irregularities, the decision of the court below must first be got upon them.

There exists another reason why this judgment should be affirmed. The paper in the form of a judgment, signed by the judge, and filed November 9, 1888, was either a judgment or a direction for judgment. If the former, it was affirmed in the former appeal; and as in all matters of substance as also in its terms it is identical with that entered by the clerk, January 2, 1889; that affirmance covers all there is in this case. If it was the latter, then it was not appeal-able, and the stay-bond was of no effect to stay proceedings, and it was also authority to the clerk to enter the judgment which he entered. January 2d, and from which this appeal is taken. That the clerk, instead of copying that paper, and attaching the copy to the judgment-roll as a. copy of the judgment, attached the original paper as such copy, if an irregularity at all, was such a one as could not affect substantial rights, and would be disregarded.

Judgment affirmed.