Rousset v. Boyle

45 Cal. 64 | Cal. | 1872

By the Court:

The order appealed from was lately affirmed here on the ground that it was not supported by a statement on appeal. The fact has since been suggested at the bar that this defect was cured by a stipulation between the counsel which was not called to our attention. W e take this occasion to say that it is the duty of counsel to see that the copies of the transcript intended for the members of the Court literally conform to the transcript filed in the office of the Clerk. In the great majority of cases we never see the transcript filed in the Clerk’s office, but depend entirely upon the copies sent to the consultation room for the use of the members of the Court. The latter are expected to be accurate in every respect, and unless their accuracy be assured, serious mistakes are liable to ensue.

Whatever conflict may be found (and it is certainly far from inconsiderable) between the authorities as to the right and duty of the trial Court to correct its records, in order to make them conform to the truth, and so prevent them from being turned into instruments of injustice, we think that it must be conceded that under no system of jurisprudence recognized among civilized people has it ever been permitted that a party who has by the mere misprision of the Clerk obtained against his adversary the entry of a judgment never, in fact, pronounced or rendered by the Court, should, while substantially admitting the fact of the mistake, retain its fruits.

The cases out of which controversies upon the subject have arisen are cases in which the judgment had in point of fact been rendered by the error of the trial Court, or in which the fact of the mistake or misprision of the Clerk was controverted. It is argued, and with much force, that there must be some point in the course of judicial proceedings at which the zights of the paz’ties litigant become absolutely fixed and placed beyond challenge, and that, unless this point is to be found in the entry of final judgment in the cause, it is not to be hoped for elsewhere. Much stress is usually laid upon the danger of permitting a reagitation of matters which it is the very purpose of the judgment to definitely and finally determine. But where, as here, there is no real controversy upon the fact that the judgment is a mere misprision, no such difficulties can arise. We have looked in vain amid the numerous affidavits of counsel and parties, upon which the motion to correct the entry in question is resisted, for a substantial denial of the fact that in the entry of this judgment a mistake of a grave character—amounting here to about seven times the number of acres of land really in controversy—had intervened. The Court below was satisfied—it could not have been otherwise under the circumstances—that the judgment, as actually pz’onounced, had never beezz entered by its Clerk, and we would but accomplish a flagrant and obvious injustice should we disturb the conclusion at which it arrived or set aside the order it made.

Motion to set aside the order of affirmance denied.