Shelley v. Smith, 50 Iowa 543

Shelley v. Smith

50 Iowa 543 | Iowa | 1879

Adams, I.

i jmigmentnof entry. The fact of the mistake is abundantly apparent, but it is insisted by the appellant that it is too late to correct it. The judgment was rendered in 1869, and the motion was made about nine years afterward, The appellant relies upon section 3156 of the Code, which provides that “the proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining a judgment, shall be by motion and within one year.”

In our opinion the section is not applicable. We think that no judgment was rendered against Marion Smith. No-judgment against her was prayed in the petition, and the petition clearly shows that she was not made a party for that, purpose, but merely for the purpose of foreclosing her interest-in the land. No personal claim being made against her, it was her right to make default, and rest in the assurance that no personal claim could be established against her. The court never had jurisdiction of the subject-matter of a personal claim against her.

Furthermore, we think that the record entry sought to be-corrected does not, upon a proper construction, show a judgment against her. It shows that the court finds that the-defendant Fulton I. Smith is indebted to the plaintiff as claimed in the petition, and that there is now due from him *545to said plaintiff, upon the notes sued on, the sum of one thousand! one hundred and sixteen dollars and fifty cents. So far the the record is correct, and this part must be allowed its influence in the construction of the record as a whole. The part in which there is a mistake is in these words; “It is, therefore, considered by the court that said plaintiff have and recover of said defendants,Fulton J. Smith, the sum of one thousand one hundred and sixteen dollars and fifty cents.” The specification of one defendant by name, and only one, is of as much importance as the use of the plural of defendant before that one name; and clearly, taking the decree altogether, it appears to us that a personal judgment was rendered against Eulton J. Smith alone. But as it is liable to mislead, to the injury of Marion Smith, it is hér right to have it corrected.

Affirmed.