Summary
In Dreyfuss v. Tompkins, 67 Cal. 339 [7 P. 732], a verdict found that plaintiff was the owner of the property described in the complaint and entitled to its return, or if a return could not be had, then for a money judgment.
Summary of this case from Davis v. RudolphOpinion
Department Two
Appeal from a judgment of the Superior Court of Nevada County, and from an order amending the same.
COUNSEL:
Cross & Simonds, for Appellant.
J. M. Walling, for Respondent, cited Swain v. Naglee , 19 Cal. 127; Hegeler v. Henckell , 27 Cal. 491; Anderson v. Parker , 6 Cal. 197; Morrison v. Dapman , 3 Cal. 255; Freeman on Judgments, § 70, 71; De Castro v. Richardson , 25 Cal. 49; Atkins v. Sawyer, 1 Pick. 351; 11 Am. Dec. 188.
JUDGES: Belcher, C. C. Searls, C., and Foote, C., concurred.
OPINION
BELCHER, Judge
[7 P. 733] This was an action to recover the possession or value of certain personal property. The case was tried before a jury, and by the verdict it was found "that the plaintiff is the owner of the property described in the complaint and entitled to its return, or if a return thereof cannot be had, then for the sum of $ 400, with interest thereon from June 16, 1882."
The judgment was entered up by the clerk on the 2d day of April, 1883, and after reciting the verdict added: "Wherefore, by virtue of the law and by reason of the premises aforsesaid, it is ordered, adjudged, and decreed that said L. W. Dreyfuss have and recover from said E. O. Tompkins costs and disbursements incurred in this action, amounting to the sum of $ 95.50." The case was then appealed by the defendant to this court, where the judgment and order were affirmed. The remittitur was filed in the court below on the 28th day of February, 1884, and on the next day the plaintiff gave notice of a motion to amend the judgment by inserting after the word "Tompkins," and before "costs" the words "the property described in the complaint, or if a return thereof cannot be had, then for the sum of $ 400 with legal interest thereon from June 16, 1882."
At the hearing of the motion counsel for plaintiff read the judgment as entered by the clerk and introduced no other evidence. The motion was granted and the judgment was amended accordingly. This appeal is from the order allowing the amendment.
It is well settled that clerical errors in a judgment, where they are shown by the record, may be corrected at any time so as to make the judgment entry correspond with the judgment rendered. (Swain v. Naglee , 19 Cal. 127; Freeman on Judgments, §§ 70, 71.) And this may be done even after an appeal and affirmance of the judgment. (Rousset v. Boyle , 45 Cal. 64.)
In this case the error complained of appeared on the face of the record, and it was the duty of the court to correct it on motion. The judgment and order should be affirmed. The Court. -- For the reasons given in the foregoing opinion the judgment and order are affirmed.