Kowalsky v. Nicholson (23 Cal. App. 160, 1913)

KERRIGAN, J.

This is an appeal from an order entered nunc pi'o tunc amending a previous order dismissing an action for lack of prosecution.

The action was in claim and delivery under proceedings in which the plaintiffs had secured possession of the property described in the complaint. After the cause had been at issue for nearly' four years the court, upon notice to the plaintiffs, granted defendant’s motion to dismiss the same for want of prosecution. Subsequently the court, upon due notice to the plaintiffs, amended its order of dismissal nunc pro tunc as of the date of its original entry by adding the following: “And the defendant is entitled to have returned to her all the property taken from her under the previous proceeding of this action of replevin, or if return thereof cannot be had, then she shall have judgment for the value thereof in the sum of $1,000.00 and for the delivery to her of the undertaking in this matter. ’ ’

The record does not show that the original entry as made by the clerk was different from the one directed by the court; and plaintiffs therefore contend that the court had no power to change the order or judgment, nor, in changing it, to direct that it be entered nunc pro tunc.

In a ease where it is made to appear that the entry in the minutes does not correctly embody the judgment given by the court it is a familiar rule that the court may at any time amend the judgment nunc pro tunc to make the entry conform to the true judgment. (Morrison v. Dapman, 3 Cal. 255, 257; Cowdery v. London & S. F. Bank, 139 Cal. 298, [96 Am. St. Rep. 115, 73 Pac. 196].) And'in this state the power of the courts to amend their judgments is not wholly-confined to such cases. It extends also to cases where, as here, the order was inadvertently made and entered. This is not a case like the Estate of Potter, 141 Cal. 424, [75 Pac. 850], where, upon dismissal, the court might have directed different forms of judgment to be entered. Here the defendant being entitled to a dismissal of the action, as the court correctly held, it followed under the circumstances disclosed by the record that the judgment should, as a matter of course, have directed the return to her of the property taken. Its failure to do so, it clearly appears, was merely an inadvertence or mistake, and not a judicial error.

In the Estate of Schroeder, 46 Cal. 304, a personal judgment was rendered against the administrator; and it appeared from the record that the judgment ought to have been made payable in due course of administration. It was held that this was such an error or mistake as the court could correct. To the same effect see Bostwick v. McEvoy, 62 Cal. 496.

In the Estate of Willard, 139 Cal. 501, 504, [64 L. R. A. 554, 73 Pac. 240], an allowance was made to a broker instead of to the administrator as prayed for; and it was held that the court had power on motion to set aside the void allowance, to amend the decree by striking out the allowance as made, and to insert therein in place thereof an allowance to the administrator, so as to properly dispose of the issue presented by the petition and effectuate the intention of the court. In other words, the error was not such as could only be remedied by a motion for a new trial.

In the case of Leviston v. Swan, 33 Cal. 480, 484, a judgment in foreclosure did not provide that any one was personally liable for a deficiency, and should be bound therefor after a sale of the property. More than three years subsequently an order of the court was entered, directing the docketing of a judgment for the deficiency. This order was affirmed, the supreme court saying: “The judgment in this case, as first entered, was defective in not designating the defendants who were personally liable for the debt; but inasmuch as the record shows who they were, the