214 N.W. 842 | S.D. | 1927
The respondent, who was plaintiff in the trial court, .began this action on a money demand. In its original complaint the plaintiff prayed for judgment in the sum of $285.01, but thereafter it served and filed an amended complaint, in which the demand was reduced to $146.01, and the allegations of this amended complaint would not support any recovery in excess of 146.01, with interest and costs.
The case was tried to the court without a jury. The defendant appeared at the trial, and did not waive the making of findings of fact and conclusions of law. At the conclusion of the trial the trial judge announced orally from the bench that his decision would be for the plaintiff upon all the issues. On the same day on which this oral announcement was made the trial judge signed a judgment in favor of the plaintiff’ in the sum of $285.01, and said judgment was immediately filed and attested by the clerk of said court. But no findings of fact or conclusions of law were made, signed, or filed by the trial court prior to such entry of judgment.
The defendant moved for a new trial on two grounds: First,
On the same day, June 8, 1925, the trial court issued an order to show cause, citing the defendant to appear before the court on July 3, 1925, to show cause why the plaintiff should not be allowed to file and enter, nunc pim tunc, findings of fact and conclusions of law as of March 27, 1925, in accordance with the oral decision of the trial judge announced in open court at the close of the trial, and also to show cause why the judgment previously entered should not be modified to conform to the decision of the court, and reduced to the sum of $146.01 and costs.
On July 8, 1925, the trial court signed and entered as of March 27, 1925, findings of fact and conclusions of law in accordance with the decision announced by the court at the close of the trial, and modified the judgment theretofore entered, by reducing it to the sum of $146.01 and costs. Thereafter, but on the same day, July 8, 1925, the trial court made an order denying defendant’s motion for a new trial. From this order, and from the judgment as modified and reduced, the defendant appeals.
Appellant’s counsel argues that the court’s action on July 8 was an attempted correction of a judicial error, which the trial court was without power or authority to make; and they further argue that the error of the trial court in entering- judgment, without making and filing a written decision as provided by law, was an error entitling defendant to a new trial.
It is apparent that, when the trial judge announced that the court’s decision would be for the plaintiff upon all the issues, the statement referred to the issues actually before the court. There was no issue as to any demand for judgment in the sum of $285.01, and, even had the judgment been entered with formal regularity, the error in the amount was a mere clerical error, which the court might properly correct, even after the term at
But, as the purported judgment in the instant case was entered before any decision in writing was made by the trial court, that judgment was entered without authority of law, and should be vacated upon motion. Swanstrom v. Marvin, 38 Minn. 359; 37 N. W. 455; Williams v. Ely, 13 Wis. 1; Vermule v. Shaw, 4 Cal. 214.
Instead of moving for the vacation of the judgment, the defendant moved for a new trial. This motion, being made before any written decision, was premature. Muckler v. Smith, 51 S. D. 127, 212 N. W. 491. The plaintiff might have asked the court to set aside the judgment as improvidently entered, and to make a written decision, and thereafter enter judgment for the proper amount.
But, while the procedure adopted by the parties and entertained by the trial court is somewhat anomalous, the practical result reached is the same as the regular procedure should have produced, except in the matter of allowing the date of' the judgment to stand as of March 27. Appellant makes no showing of any prejudice to him by reason of this difference in the date of the judgment.
Finding no prejudicial error in the record, the judgment appealed from is affirmed.
