Silliman v. Silliman, 133 P. 769

Silliman v. Silliman

133 P. 769 | Or. | 1913

Mr. Justice Ramsey

delivered the opinion of the court.

1. The plaintiff was entitled to a decree for an undivided one third of the defendant’s real property referred to in the complaint and in the findings of fact: Section 511, L. O. L.; Wetmore v. Wetmore, 5 Or. 469; Rees v. Rees, 7 Or. 47; Houston v. Timmerman, 17 Or. 506 (21 Pac. 1037, 11 Am. St. Rep. 848, 4 L. R. A. 716). "When the original decree was entered, a provision granting her said one-third interest in the defendant’s land should have been incorporated into the decree. The trial court’s conclusions of law failed to find that she was entitled to any part of the land. In the amended decree the court stated that she was given $1,000 alimony and $150 as “suit money” in lieu of the one third of the land, but the original decree is silent on that point. '

2. The plaintiff brought this appeal and asks that said portion of the amended decree which so modifies the original decree as not to allow the plaintiff any alimony or any “suit money” be reversed, and claims that the court below erred in so modifying said decree.

Section 514, L. O. L., authorizes the court, at any time after entering a decree of divorce, to change or set aside any portion of the decree that provides for *405the care and custody of minor children or for their education, or nurture or for the maintenance of either party. This power may be exercised'at any time after a decree of divorce is granted on the motion of either party. But this section requires a motion to be filed, asking the court to make the change desired. There seems to have been no motion filed in this case by the defendant asking to have the decree modified so as not to allow the alimony, etc. But counsel for the defendant contends that as the court below allowed alimony and the “suit money” in lieu of the one-third interest in the defendant’s realty, as the amended decree states, it was the duty of the court, when changing the original decree so as to grant the plaintiff one third of the defendant’s land, so to modify the original decree as not to allow the plaintiff any alimony or any “suit money.” This position might be true, if the court had had jurisdiction to make the change in the decree in relation to the one-third interest in the land, but the court was without jurisdiction to change its decree in any respect.

The original decree was made and entered on March 22, 1912. Another regular term of that court began on the first Monday in April, 1912, and the motion asking for the change in the decree was not filed until June 22, 1912, and the amended decree was not entered until July 18, 1912. Another regular term of that court began on the first Monday in July, 1912. It will be observed that the original decree was made during the January term, and that the motion for a change in the decree was not made or filed at that term nor until after the April term had probably closed. The records show also that the original decree was, when entered, in all respects what the court intended it to be. This motion was not based on any error of the clerk in entering the decree or to make the decree to *406be entered to conform to the decree actually made by the court. The object of the motion was to have a new paragraph added to the decree, granting to the plaintiff one third of the defendant’s real property, which the court, when the original decree was entered, did not intend to grant. That the court did not intend to grant the plaintiff any interest in the defendant’s land, when the original decree was rendered, is shown by the conclusions of law then filed and by a recital of the amended decree.

3. The law is settled that a court may make changes in a judgment or a decree at any time during the term at which it was entered: 1 Black, Judgments (2 ed.), § 153. It is equally well settled that, after the expiration of the term of court at which a judgment or a decree was rendered, it is not within the power of the court to amend it in any matter of substance or by adding a new clause affecting the rights of the parties: 1 Black, Judgments (2 ed.), § 153; Grover v. Hawthorne, 62 Or. 69, 75 (121 Pac. 804); Farmers’ Loan Co. v. Oregon Pac. R. R., 28 Or. 66 (40 Pac. 1089); Lombard v. Wade, 37 Or. 432 (61 Pac. 856); 23 Cyc., pp. 861, 862. But it is within the power of the court, after the adjournment of the term, to correct clerical errors or misprisions of the clerk in entering a judgment or a decree so as to make the judgment or the decree entered conform to the judgment or the decree actually rendered. Under this power to make corrections, however, the power of the court is limited to including in the reformed judgment or decree provisions that were included in the judgment or decree actually rendered, but omitted from the entry by misprision of the clerk: 1 Black, Judgments, §§ 156, 157. ■ Mr. Black, in Section 156, says: “Hence, if anything has been omitted from the judgment which is necessarily or properly a part of it, and which was intended and *407understood to be a part of it, but failed to be incorporated in it through the negligence or inadvertence of the court or the clerk, then the omission may be supplied by an amendment after the term. 'If, on the other hand, the proposed addition is a mere afterthought and formed no part of the judgment originally intended and pronounced, it cannot be brought in by way of amendment.”

The amendment of the decree in this case, so as to grant the plaintiff part of the defendant’s land, was an afterthought, and the court was without jurisdiction to allow it, after the adjournment of the term, and hence the court could not, as an incident to that amendment, amend the decree so as to allow the plaintiff no alimony or “suit money,” the defendant not having presented any motion or petition for such modification. We do not find it necessary, however, to decide whether, if the court had had jurisdiction to amend the decree, so as to allow the plaintiff part of defendant’s land, it could, as an incident to that amendment, have amended the decree also so as not to allow the plaintiff' alimony or “suit money,” without a motion asking for such modification. But the change in the decree, so as to grant the plaintiff part of the defendant’s land, having been made without jurisdiction, the other change could not be made as an incident to that modification even if it could have been so made, if the change as to the land had been legally granted.

We find that the attempted amendment of the original decree, so as not to allow the plaintiff the $1,000 as alimony or $150 as “suit money,” was made without jurisdiction, and that it is void. The amended decree, so far as it changed the original decree, so as not to allow the plaintiff said alimony and said ‘ ‘ suit money, ’ ’ is reversed and set aside. We do not reverse that part of the amended decree which attempts to allow one *408third of the defendant’s land to the plaintiff for the reason that the defendant has not appealed therefrom. The decree of this court reverses that part of said amended decree in regard to alimony' and “suit money” without affirming any part of said amended decree, as the whole amended decree was rendered without jurisdiction or authority. Neither party will recover costs or disbursements in this court.

Reversed.

Mb. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Burnett concur.