O'Brophy v. Era Gold Mining Co.

Mr. Justice GoUdakd

delivered the opinion of the court:

It is insisted by counsel for defendant in error that this record does not present for review any of the rulings complained of by counsel for plaintiff in error for the reason, as it is claimed, that the writ of error does not run to a final judgment; and, assuming this to be true, the decision in Schmidt v. Dreyer, 21 Colo. 100, is relied on as conclusive of this proposition. That case was an action in replevin. A final judgment was rendered in favor of Dreyer at the November term, 1891, of the county court of Arapahoe county, which, by mistake of the clerk, was incorrectly entered. On January 12, 1895, upon discovery of this mistake, he applied for an order to amend and correct the entry so as to make the record express the judgment which was, in fact, pronounced by the court. The court heard the testimony and made an order directing such correction to be made. This court held that from the record presented it appeared that the writ of error was taken to review this order and not to the final judgment theretofore rendered, and, for the reason that this essential statutory requirement had not been complied with, dismissed the writ of error.

It will be observed that the record before us is not objectionable fof the reasons given in that case, but contains all the proceedings had and all orders made in the case, including the judgments of the Ith and 5th of January, 1901, and all the proceedings had in relation to the latter judgment subsequent thereto, and by the errors assigned the validity of the latter judgment is directly challenged, and the correctness of the ruling of the trial court in denying the motion to restrain the clerk from entering the same of record.

We think, therefore, the validity of what purports to be a final judgment, to wit, that of January 5, 1901, is properly presented for our consideration and determination.

Counsel for defendant in error devote considerable space to the discussion of the power of a court to amend or correct a judgment during the term at which it was rendered. We concede the rule to be well settled that a court has power to not only correct, but also to change, its judgment during the term, and has power at any time to correct the record to make it speak the truth. Suffice it to say that the exercise of such a power is not involved in this cale; but the question' presented is whether a judge is vested with authority, acting outside the court, to change or alter a judgment theretofore duly rendered in open court. In other words, has he authority, by telephone or otherwise, to render a judgment when not present in court? -As was said in Cooper v. Amer. Central Ins. Co., 3 Colo. 318: “A judgment is the sentence of the law pronounced by a court of competent jurisdiction, as the result of proceedings instituted. It is a judicial act, and to be valid must be pronounced by the court, at a time and place appointed- by law, and in the form it requires. ” It is clearly shown by the affidavits of Mr. McFeely and Mr. Gaylord, and also Judge Stimson admits in his affidavit, that, as a matter of fact, the judgment was pronounced in open cour' ' day of January, A. D. 1901, as shown ir _utes 'of the clerk, to wit, “That the injunction as modified heretofore be made perpetual.” Judge Stimson further states that he did not at the time he rendered the judgment have in mind the fact that the injunction, as originally issued, had been modified, and through an inadvertence he directed the clerk to enter the judgment making the temporary injunction as modified perpetual. That on the next day, to wit, the 5th day of January, 1901, while at Colorado Springs, he became aware that said judgment as entered upon the clerk’s minutes was not the proper judgment in said cause, and was not the judgment which he had actually intended to render in said cause. But nevertheless he did pronounce the judgment so entered, and it became then and there the judgment of the court. As was said in Schuster v. Rader, 13 Colo. 329, 334:

“The judgment having been so pronounced in open court, the act of entering the same in-the record by the clerk was purely ministerial, and was not essential to the existence of the judgment SO' rendered, though the entry was necessary to preserve it, and, as a matter of proof, was the best evidence of its existence. The judgment derived its force and effect from the fact that it had been so considered, adjudged and decreed by the court; and it became effective from the time of such adjudication and promulgation in open court, though the ministerial act of entering the same in the records of the court might be delayed.”

The judge was, therefore, without authority, while the court was not in session, to direct the clerk to enter another or different judgment in conformity with an unexpressed intention he may have had in mind at the time the former judgment was rendered. The judgment, therefore, as entered of the 5th of January, 1901, is void, and may be vacated at the same or subsequent term. — 1 Black on Judgments, secs. 318, 326; Current Law; vol. 4, p. 300 and cases cited in notes 96 and 97.

“The court will always, upon motion, strike from its record a judgment void for irregularity.” — Williamson v. Hartman, 92 N. Car. 236.

And in this state such a judgment may be reviewed on error. — Hoehne v. Trugillo, 1 Colo. 161; Skinner v. Beshoar, 2 Colo. 383; Cooper et al. v. Am. Cent. Ins. Co., 3 Colo. 318; Bean v. The People, 6 Colo. 98.

The plaintiffs in error were entitled to the relief sought, and the court below erred in denying their motion to réstrain the clerk from entering the judgment of January 5, 1901, and its ruling thereon is reversed, and it is ordered that the court below sustain said motion, and in case said order shall have been entered, that the same be declared void, and expunged from the records.

Reversed.

Chief Justice Gabbert and Mr. Justice Bailey concur.