Keene v. Welsh , 8 Mont. 305 ( 1889 )

Bach, J.

We do not doubt the soundness of the rule that the trial court cannot at a subsequent term so modify a judgment that the modification is in effect a reversal. That is the province of the appellate court. But the trial court has the power to modify or correct the judgment or record to such an extent that the relief granted may be such as was intended to be granted. This doctrine has already been announced by this court in several cases. (See Territory v. Clayton, ante, p. 1, and cases "therein cited.) The court below in granting this motion based its action upon all the testimony in the case, which testimony was a part of the motion papers, and was in no way contradicted by affidavits filed by the appellants. Upon such a state of facts that would be a severe rule, which would deprive the successful party of the judgment which had been judicially awarded him, because the clerk had failed to enter the judgment in proper form.. It is the duty of the clerk and not of the court to enter the judgment, and- a liberal rule should be adopted to the-end that the carelessness of clerks shall not defeat justice. In some jurisdictions the power to amend a judgment is confined to what appears from the record to have been the judgment intended ; in others> the propriety of the amendment may be based upon a petition and affidavits. The latter rule is approved by Mr. Freeman is his work on Judgments, and also by the Supreme Court of the United States, which latter authority is binding upon tills court.

In Matheson v. Grant, 2 How. 279, the judgment was entered at a subsequent term, and the motion was based upon an affidavit setting forth the evidence in the case. In that case the motion papers were similar to those which were before the judge granting the amendment in this case. (See, also, cases cited at the end of § 72, Freeman on Judgments.) The appellants rely upon the case of Morgans L. & T. R. & S. S. Co. v. Texas Cent. R. R. Co. 32 Fed. Rep. 533. That case is not similar to this. The order did not modify the judgment so that the latter might represent or contain what was originally intended; but the order was to modify the judgment, so that it might represent or contain what became the subsequent opinion of the court. The principle which guides our ruling in this case, and which, we think, is the rule to be applied to the facts in this case, is contained in the following language, quoted from the opinion of Chancellor Walworth: “A decree cannot be varied in substance on petition, without a rehearing. But it may be corrected or amended on motion or petition, as to mere clerical errors, or by the insertion of any provision or direction which would have been inserted, as a matter of course, if asked, for at the hearing, as a necessary or proper clause to carry into effect the decision of the court.” (See Clark v. Hall, 7 Paige, 382, 384.) The order appealed from is affirmed with costs.

Judgment affirmed.

De Wolfe, J., and Liddell, J., concur.