9 Colo. App. 41 | Colo. Ct. App. | 1896
delivered the opinion of the court.
The county court of Arapahoe county made an order amending the judgment entry in the case of Schmidt v. Dreyer, and Wolaver, the sheriff, and the present proceeding is an attempt to review that action and restrain the court from further proceeding in the premises.
The original judgment was rendered some five or six years before the attempted amendment, and the time for an appeal or a writ of error liad long gone by. The parties sought to obtain a review of the action of the county court by prosecuting-error from the order made after the judgment had been amended. This was adjudged irregular by the supreme court, who held that these matters could only be reviewed on an appeal or writ of error from the final judgment. Since this was impossible, the parties would be remediless unless they were permitted to enforce the present remedy. Its regularity and sufficiency is not questioned, and it is likewise apparently sustained by the authorities. Schmidt v. Dreyer, 21 Colo. 100; Schwarz v. The County Court of Garfield County, 14 Colo. 44; The People ex rel. Dougan et al. v. The District Court of Lake County, 6 Colo. 534; Jeffries v. Harrington, 11 Colo. 191; Duggen v. McGruder, 12 Am. Dec. 527.
This preliminary matter being disposed of, we are brought to the consideration of the main question, which respects the power of the court to correct its record after the term at which the judgment was entered. There are some minor questions suggested as. collateral to the main proposition, but practically growing out of it. These will be disposed of in their natural order.
We must first state the facts which make up the- history of the case. For these we depend on the proof offered in support of the motion. The appellant, Mrs. Schmidt, did not controvert the showing. The facts were conceded, and we are only to ascertain whether the judgment can be sustained.
In 1891 Mrs. Schmidt brought suit in replevin against
On these facts and on proof of this description the present county court, presided over by a different judge, made an order amending the judgment entry so that thereby the judgment was in favor of the defendants in the sum of $700, or
One of her principal contentions is based on the character of the evidence which was offered and on which the county court based its action. The appellant cites quite a number of cases wherein the question of what proof can be relied on to justify a court in amending its record by a mine pro tune order, and thereupon asks us to hold the affidavits offered inadmissible, and to restrain the county court from proceeding because there is no absolute written evidence, like a judge’s minutes or other record proof, on which to proceed. While we recognize the preeariousness of the tenure by which successful parties to judgments would hold title if it be conceded their rights may be varied, altered, or affected by parol proof as to what was done at the time of the original entry, we are also impressed with the necessity for permitting the introduction of this kind of proof in order to do substantial justice between parties whose rights are affected by an inaccurate entry. Had the rule been otherwise declared, it might have been supported by the irrefragable argument that the parties were bound by the judgment as it stood, because both they and their attorneys were charged with notice of its terms and responsible for any of its inaccuracies or errors which could at all times have been easily corrected at and during the term in which the judgment was rendered. Negligence in this respect we concede ought perhaps in equity to bar them. The writer is firmly of the opinion this would be an equitable rule. Parties and attorne3rs have no business to lie by and rely on the acts of the clerk and his accuracy in. the entry of judgments, and when he fails, call on the court }rears afterwards to correct the mistake. It is the dutjr of attorneys to examine the judgment entries and see that they are correct, and when errors have’crept in, move promptly for their correction. Whatever ma)r be our opinion respecting it, the law-is otherwise written. It is clearly settled the
These authorities broadly support the power of the court •to amend its record and rest its action on proof which shall -be sufficient in its judgment to demonstrate the error inherent in the record. Tested by these rules, the county court was wholly justified in declaring the entry an erroneous one. The recollection of the court, the recollection of counsel, and the recollection of the stenographer all unite on the one proposition that the judgment which the court in fact declared was for the defendants and for the return of the property or its value, which was fixed at $700. A judgment which failed to express this result did not accord with the request of counsel, or the announcement of the judge who tried the case. It may, however, be well insisted there is record evidence to support the motion. The right of appeal was conditioned on the giving of a bond in the sum of $1,400. This is exactly double the amount of what the judgment would have been and actually was if these affidavits are true. The court would not otherwise have so conditioned the right ■of appeal. Nor is it conceivable that Mrs. Schmidt would have idly consented to the restriction of her right by the requirement of a bond of this description unless the judgment had been as the parties now contend. Neither parties nor' counsel consent to the giving of extraordinary bonds unwarranted by the statutes. The difficulty which comes to most litigants in furnishing this class of securities always results in a contest over the amount specified if the court at all transcends his power or his duty in such matters. We
This proposition being conceded, we are brought to the main question of the power of the court to amend its records after the term. Of this there is no doubt. The courts everywhere concede authority to make their records conform to the facts. The only possible limitation on the power of the courts in this direction is found in the general expression that after the term they are limited to the correction of those errors which may be regarded as of a clerical character, and which, when corrected, will make the records conform to the facts. The order may only interpolate and make part of the record what was in fact done. The rule has been declared by both the appellate courts of this state in harmony with these general authorities. Kindel v. The Lithographing Co., 19 Colo. 310; Breene v. Booth, 3 Colo. App. 470; Breene v. Booth, 6 Colo. App. 140; Freeman on Judgments, secs. 68 and 70; Gray v. Brignardellow, 1 Wall. 627; Inhabitants of Limerick, 18 Me. 183; Ross v. Ross, 83 Mo. 100; Cleveland Leader P. Co. v. Green, 40 N. E. Rep. 201; Phillips et al. v. Negley, 117 U. S. 665; McClannahan v. Smith, 76 Mo. 428; Wooldridge v. Quinn, 70 Mo. 370; De Castro v. Richardson et al., 25 Cal. 49; Compton v. Cline, 5 Grat. 137.
It must therefore be conceded the county court had full authority to correct this entry so that it should speak the actual judgment pronounced by the court in Schmidt v. Dreyer. We do not understand there is any disagreement between this and the supreme court with reference to this general doctrine, though counsel seek to build up an imaginary difference between them. It is quite true the court in the Kindel Case speaks of judicial errors as being the subject-
The action of the district court in the present proceedings, which adjudged the correction made by the county judge entirely regular and proper, is in harmony with the law as we have herein stated it, and, its judgment being entirely correct, it will be affirmed.
Affirmed.