105 Wis. 323 | Wis. | 1900
It is conceded that the judgment for deficiency appealed from is erroneous unless ordered in the
The mistakes that may be corrected under the practice indicated, include everything that may be the subject of mistake. As to a judgment, the test is, Does it, as entered, «conform to the decision made or judgment pronounced? There is no power to correct errors in the actual judicial determination under the guise of correcting mistakes. Such errors must be corrected in the court where committed, within the time and in the manner specified in the statutes, or on writ of error or appeal. In Williams v. Hayes, supra, where the actual judgment rendered was for a dismissal of the complaint, and the judgment as entered was in form a dismissal on the merits, it was held that it could be corrected by striking out the words “ on the merits.” In Cole’s Will, 52 Wis. 591, the judgment was” corrected so as to provide that the costs of the contestants should be paid out of the estate", the court saying: “There is no rule of law in the way
Turning to the record to determine whether the failure ■to include, in the final evidence of the judicial determination of this cause, a provision for a deficiency judgment as to that part of the debt not due at the time of such determination, was a judicial error in that the trial court either failed to pass on the subject at all or did so erroneously, or was a mistake in drafting the final decree, no difficulty is' met with in reaching a determination that it was the latter. The prayer for relief in the complaint was for a judgment ■containing an order for a deficiency judgment as to all the indebtedness not satisfied by the sale of the property. The referee’s report covered all the facts requisite to such a judg
Now, as stated in the opening lines of this opinion, it is-conceded that if the signed decree in this cause expresses in full the decree actually pronounced or ordered by the trial court, the deficiency judgment is wrong because not supported by a proper order in such decree. The point being settled that the decree is not according to the decision of the court, in that it omitted an order for a deficiency judgment covering that part of the debt to become due as-well as that which was due, and that such mistake was re
The respondents’ attorneys should have moved the court for a correction of the foreclosure decree and for a judgment for a deficiency in accordance therewith. Ho objection seems to have been made to the entry of the judgment appealed from on that ground, and if there were it is by no means clear that the failure to make the correction in advance of the entry of judgment would constitute a prejudicial error to be taken advantage of by appeal. The real foreclosure decree made unquestionably authorized the deficiency judgment appealed from. A formal correction of the signed decree would have been made on the application for such judgment had the court’s attention been called to the necessity for it. The record showed the facts clearly. The motion for the deficiency judgment was based on the record as well as on affidavits duly served. The necessity for the correction of the mistake, prior to the rendition of the judgment appealed from, is one, of those matters that should be treated on appeal as satisfied in effect by what was done,— the granting of the motion for judgment upon the ground that the foreclosure decree authorized it; or the appellate court should make the amendment and affirm the judgment appealed from with costs to the respondent, because the error was not prejudicial to the adverse party. Smith v. Kennedy, 63 Ala. 334. It falls within the rule that on appeal, in support of the judgment appealed from, the pleadings and proceedings will be deemed amended in accordance with the facts proved when the evidence was not objected to below, or the proper amendment will be made on appeal. Gill v. Rice, 13 Wis. 549; Forcy v. Leonard, 63 Wis. 353; Hubbard v. Haley, 96 Wis. 578; Slater v. Cook's Estate, 93 Wis. 104; Phillips v. Carver, 99 Wis. 578; Reisz v. Supreme Council, 103 Wis. 427. It also falls within the scope of the beneficent
By the Court.— The judgment appealed from is affirmed.