Snyder v. Fahey

Jun 24, 1918

Reporters:
Before:: Evans

Evans, J.

brroe^ cor-D ment0:neer-:,uas’ o^appeaA ?) The record involved ivas made in the case of Citizens State Bank v. Snyder. This was a forcible entry and detainer suit, brought by the plaintiff theréin before a justice of the peace in Dallas County, recover tfie possession of real estate, and transferred to the district court of said county, where trial was had. Defenses in abatement were pleaded in such action. For tiie purpose of this proceeding, it may be deemed also that a defense in bar was pleaded. A judgment Avas entered therein, dismissing the petition. The judgment entry did not, in terms, indicate whether the judgment was in bar or in abatement. The effect of this omission was to raise a presumption in favor of the bar. The plaintiff therein filed a motion, supported by a ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍showing, asking a correction of *1120the record so that the judgment entry should show, in terms, the ground of the dismissal. The showing in support of the motion was, in substance, that the defenses in abatement were the only ones litigated, and the only ones to which evidence was adduced; that, in fact, the ground of the dismissal was in abatement; and that such ground was, tlmnigh mistake or oversight, omitted from the judgment entry. The’ application for correction came on for hearing, both parties appearing, before the same judge who entered the original judgment, and who is now defendant herein. His testimony was taken and incorporated in the record, and the same fully sustained the claim of mistake in the judgment entry. Tt was accordingly corrected, so as to show that it was based upon the defense in abatement, and not upon the defense in bar. Though the plaintiff’s application for a correction was denominated a motion, and purported to be supported by an affidavit which recited the facts, the parties appear to have treated the motion and affidavit together as a pleading, ill the nature of a petition, and the defendant demurred thereto on the ground that it was barred by the statute of limitations, in that it was not brought within one year. This demurrer being overruled, the. defendant answered, and again pleaded the statute of limitations. The defendant therein is the plaintiff herein, and seeks here to annul the order of correction of the record in the forcible entry and detainer suit.

T. • The defendant herein challenges the right of the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍plaintiff herein to maintain this certiorari proceeding, because she had plain, speedy, and adequate remedy by appeal. The plaintiff’s abstract does not specifically disclose what particular question is presented to us for review. No reference is made therein-to the writ of certiorari, nor to the affidavit in support thereof, nor to the particular grounds upon which the issue of the writ was ’demanded. All this is left to inference. That the plaintiff had a right *1121to appeal from the order of correction is undeniable. It is by this course that such orders have heretofore come before us for review. No case is cited to us wherein we have heretofore reviewed such an order on certiorari. That the remedy by appeal is, ordinarily, speedy and adequate, seems also undeniable. The order in question was entered in May, 1917. The defendant therein (plaintiff herein) did ‘perfect an appeal therefrom to this court on June 1, 1917. The cause was pending in this court on such appeal until December 22, 1917, when the appellant therein (plaintiff herein) dismissed the appeal, being then in default for failure to file abstract within the statutory timé. On the same day, she served a second notice of appeal, and this purported appeal was also dismissed, a month later. Some time thereafter, this proceeding was begun. The appeal taken on June first would have come on for submission, in ordinary course, at our January, 1918, term. The present proceeding was not instituted until after that time. No question is presented to us herein which could not have been fully considered on such appeal.

Unless ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍it can be said, therefore, that the order of correction by the district court was without jurisdiction, in the sense that it was wholly void, and therefore subject to attack by any procedure, collateral or • otherwise, the remedy for its review was by appeal, and not by certiorari. We proceed, therefore, to the question of jurisdiction.

2‘ abatement: (?) mmeTpro\‘uno ouler’ II. Plaintiff assumes that the application for a correction of the record below rests upon Sections 4093 and 4094 of the Code. This is an erroneous assumption, and undermines the plaintiff’s entire argument. These sections are found in the chapter relating to “Proceedings to Revérse, Vacate or Modify Judgments in the Trial Courts.” The application below is not based upon any mistake or omission on the part of the clerk, nor upon any irregular-’ *1122ity in obtaining the judgment; nor was it an application to “reverse, vacate or modify” the judgment. The application in question invoked a power of the court which we. have frequently held to be inherent in the court, and which has recognition in Code Sections 244 and 4127. This may be designated as a general power of nunc pro tunc entry, which is frequently exercised for the correction of mistakes in the record, either of omission or of commission. It is not a power to review or to change, but it is the power to enter upon the record now what was actually done, and what was intended to be entered upon the record then. Its function is now to supply or pei’fect the record evidence of •what was then actually doxxe by the coxxx’t. In Fuller & Co. v. Stebbins, 49 Iowa 376, a nunc pro tunc entry ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of judgment was ordered of record which was intended to have beexx made three axxd a half years before. It was held thereixx that the power to so do was inherent iix the court, and was xxot barred by the lapse of time. A similar holding was made in Hofacre v. Monticello, 128 Iowa 239; Puckett v. Guenther, 137 Iowa 647; same case, 142 Iowa 35; Dowling v. Webster County, 154 Iowa 603; Lambert v. Rice, 143 Iowa 70.

In the Dowling case, we said:

“The time within which a record may be corrected is not limited by the above statute, and only laches or equitable coxxsideratioxxs will obviate the remedy provided.”

In the Lambert case, we said:

“The right of the court to correct an evident xxxi stake in the record is inherent. It is not forbidden by the statute, nor affected by the mere lapse of time. The cox’rectioxx asked in this case is in the nature of a nunc pro tunc entry. It in no sexxse qxxalifies the former action of the coxxrt, but causes such former action of the court.to appear correctly upon the record, according to the very truth as it ivas at that time.”

*1123The foregoing relate to the exercise of the power of correction, as between the parties to the judgment. Notice to the adverse parties is requisite to such proceeding, and intervening equities of third parties are entitled to due protection.

It will be seen, therefore, that the court did have jurisdiction of the subject-matter of such application for a correction. Though it err in making the correction, its jurisdiction would not be affected thereby.

8. judgment: nessr: correct” Upon the record before us, however, the court did not ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍err in making such correction. The pleadings and the evidence in the forcible entry and detainer suits are incorporated in the abstract herein. On the trial 0f ‡]16 forcible entry suit, no competent evideuce was offered or introduced by the defendant, except in support of her defenses in abatement. The case was finally submitted upon a pending motion of the defendant therein for a dismissal of plaintiff’s petition on specified grounds, which were wholly in abatement. There is no room for doubt that the omission from the judgment entry of the ground of the dismissal was a mere oversight and mistake, and that the presumption arising from such omission failed to express what was actually done by the court. The order of the district Court-is, therefore, — Affirmed.

Preston, C. J., Ladd and Salinger, JJ., concur.