63 Cal. 310 | Cal. | 1883
The notice of appeal in this case states that the appeal is taken from the decree of foreclosure and sale entered August 4, 1880, from the amended decree entered October 8, 1880, and from the judgment of deficiency docketéd December 2, 1880.
The decree of foreclosure was made in open court August 2, 1880, and was recorded August 4, 1880. The transcript before us shows no subsequent action of the court, except that in the decree of August 2, 1880, in stating the amount due on the mortgage at “ forty-seven thousand seven hundred and eighty-three 42-100 dollars,” the “seven,” “seven,” and “eighty-three 42-100 ” are erased with ink lines, and the words “ four,” “ five,” and “ thirty-six ” interlined, also in ink, in two separate places, making the decree read that the amount due was “ forty-four thousand five hundred and thirty-six dollars ”; and on the margin is written “ decree amended by order of court entered October 8, 1880; attest William A. Stuart, clerk.” Ho docketing of any judgment for deficiency appears in the transcript. The notice of appeal was given September 15, 1881.
The notice of appeal was given too late. It should have been given within one year after August 4, 1880, the day when the decree was entered. The fact that the court on the 8th of October following corrected its] decree as to the figures did not change the day of the entry of the decree; it was already entered. Doubtless by clerical error wrong figures were stated in the decree, and the court, perhaps of its own motion, as it had the legal right to do, corrected the error so as to make the record speak the truth.
The case before us is not such a case as would have been presented, if the decree of August 4th had been set aside, and another decree entered October 8th; it is merely a correction of amounts, not the entry of a new decree.
Appeal dismissed.
Sharpstein, J., and Thornton, J., concurred.
