Smith v. Rose , 125 Or. 56 ( 1928 )

ON THE MERITS. This is a suit to enjoin the sale of real property under a decree of foreclosure of mortgage. On July 29, 1924, the defendant Rose, on default of the plaintiff herein, obtained a decree of foreclosure. The decree provided, after directing that the plaintiff herein recover the amount due on the note and an attorney's fee of $100, that there should be a "foreclosure of said mortgage in the customary manner in this Court of and as therein set forth the premises described in the complaint together with the plaintiff's costs and disbursements herein incurred." After term time, the court, no doubt being dissatisfied with the form and language of the decree rendered, entered another specifically describing the property to be sold and directing that sale be had and the proceeds thereof applied in the manner provided by statute. Execution was issued under the last decree. Hence this suit for injunction.

It is the theory of the plaintiff that the court, after term time, had no authority to render the second decree and that the proceedings had thereunder are void. The lower court sustained a demurrer to the complaint herein and, upon refusal of the plaintiff to amend his pleading, the suit was dismissed. From this order of dismissal the plaintiff appeals.

Did the court, after term time, have jurisdiction over the cause thus to amend its decree? If so, plaintiff's suit for injunction must fail. The rule is well settled in this state that, after the expiration of the term during which a decree was rendered, it is not within the power of the court to amend it in any matter of substance or in any way affecting the merits of the controversy: Silliman v. Silliman, 66 Or. 402 (133 P. 769), and cases therein cited. The rule is thus well stated in Black on Judgments (2 ed.), Section 154:

"* * the courts have power, after the term to supply omissions in a judgment, and to reform and perfect it, so as to make it conform exactly to the judgment intended to be given in the case; but * * they cannot use the power of amendment to correct judicial errors or to enter a judgment which was neither in fact rendered nor intended to be rendered."

There was no violation of this rule in the instant case. While the first decree was imperfect in form, the property, without doubt, could have been sold thereunder, as the statute provides the manner of conducting such sale and the method of applying the proceeds thereof. In the second decree the court did not grant to the plaintiff therein anything in addition to what the former decree had already given him. It was merely an amplification of the first decree and in no way materially affected the rights of this plaintiff. The amendment was as to form rather than substance.

Appellant complains that there are two decrees against him relative to the same matter, but we take it that there can be no reasonable apprehension of danger that he will be compelled to satisfy both decrees. Unquestionably the satisfaction of one decree will operate as a discharge of the other: Cooper v.Sagert et al., 111 Or. 27 (223 P. 943).

Plaintiff's default in the foreclosure proceedings was a confession of indebtedness. We see no good reason why this cause should be reversed and the judgment creditor be obliged to have execution issued under the original decree. There has already been too much delay.

The decree of the lower court is affirmed.

AFFIRMED.

RAND, C.J., and BEAN and BROWN, JJ., concur.