#### AMY A. BARNES v. WILLIAM H. HULET.

(150 N. W. 562.)

Trial court —equity case — judgment—amending or modifying judgment — provision of — merits — power to — making judgment effective.

1. The trial court 'which entered a judgment in an equity case has the undoubted power to later modify or amend such judgment respecting provisions thereof not affecting the merits of the adjudication, but merely relating to the mode of effectuating the court’s decision.

Contract for sale of land — action to cancel — equity case — default in payment— judgment for payment or for cancelation — payment to plaintiff — to clerk of court.

2. Where, in an equity case brought to cancel a contract for the sale of land on account -of defendant’s defaults in making certain payments, a judgment is entered decreeing such cancelation unless defendant, within a time stated, relieves himself from such defaults by making such payments to plaintiff’s attorneys, it is not prejudicial error for the court, with or without cause shown, to thereafter modify such judgment by directing or authorizing such payments to be made to the clerk of the court for plaintiff’s benefit, instead of to plaintiff’s attorneys.

Opinion filed December 22, 1914.

Appeal from District Court, Ransom County; *Allen,*J.

Erom an order modifying a judgment so as to authorize and direct the payment by defendant of certain moneys to tbe clerk of. the district court, instead of to plaintiff’s attorneys, plaintiff appeals.

Affirmed.

*137*Bourhe &*Kvello, for appellant.

At common law a judgment cannot be amended after tbe term in which it was entered. Bramlet v. Pickett, 12 Am. Dec. 354, and note, 2 A. K. Marsh. 10; Black, Judgm. 2d ed. § 154.

In the absence of a statute authorizing it, the district court has no power to vacate, modify, or amend its judgments or decrees after they have been made and entered. Carlow v. Aultman, 28 Neb. 672, 44 N. W. 873; Barnes v. Hale, 44 Neb. 355, 62 N. W. 1063.

A final judgment is conclusive, both as to the relief granted and that which is denied. White v. White, 130 Cal. 591, 80 Am. St. Bep. 150, 62 Pac. 1062.

The statute of this state provides for relief from judgments. N. D. Stat. § 6884; Exchange Bank v. Ford, 7 Colo. 314,' 3 Pac. 449.

The remedy by motion is used only in case of irregularity, and resort cannot be had to it to enable a court to reform or correct errors of law. The judgment here was regularly entered. State ex rel. McClory v. Donovan, 10 N. D. 206, 86 N. W. 709; Olson v. Mattison, 16 N. D. 231, 112 N. W. 994; Black, Judgm. 2d ed. § 158.

A court of equity can only amend its decrees where the record itself furnishes the means of correction. It cannot amend by granting additional relief. Bramlet v. Pickett, 2 A. 3L Marsh. 10, 12 Am. Dec. 350; O’Brien v. O’Brien, 124 Cal. 422, 57 Pac. 225; Byrne v. Hoag, 116 Cal. 1, 47 Pac. 775; First Nat. Bank v. Dusy, 110 Cal. 69,'42 Pac. 476; Thompson v. Thompson, 73 Wis. 84, 40 N. W. 671; Manning v. Nelson, 107 Iowa, 34, 77 N. W. 503; Parker v. Linden, 59 Hun, 359, 13 N. Y. Supp. 95; 23 Cyc. subdiv. 4, 868 and authorities cited; Day v. Mountin, 89 Minn. 297, 94 N. W. 887.

Nor can the court amend so as to change the rights of the parties as fixed by the original judgment. Heath v. New York Bldg. Loan Bkg. Co. 146 N. Y. 260, 40 N. E. 770; Pursley v. Wiekle, 4 Ind. App. 382, 30 N. E. 1115; Griffith v. Maxwell, 19 Wash. 614, 54 Pac. 35.

*Curtis & Curtis,*for respondent.

District courts of this state have the power to amend their decrees where such amendment does not affect the merits of the case, but tends to make effective the original judgment. Tyler v. Shea, 4 N. D. 377, 50 Am. St. Hep. 660, 61 N. W. 468.

*138Fisk, J.

This is an appeal from an order made by tbe district -court of Ransom county on August 6, 1913, amending a judgment •entered in that court on June 7th of that year. It is appellant’s contention that such order was erroneous because tbe court bad no authority in law to order sucb amendment, and, further, that tbe same was made without a proper showing of cause.

Tbe judgment as originally entered recites tbe fact that a certain contract was entered into between tbe parties on June 21, 1905, whereby tbe plaintiff agreed to sell to tbe defendant, and tbe defendant agreed to purchase from tbe plaintiff, certain real property therein described, upon certain conditions and pursuant to certain stipulations therein recited. Sucb judgment also recites tbe fact that defendant breached sucb contract in numerous particulars, and that be is in default in making tbe payments required of him thereunder. It determines and adjudges tbe amount of sucb default to be tbe sum of $5,141.15 on May 13, 1913, and directs that sucb amount, with interest from sucb date, be paid at tbe office of plaintiff’s attorneys at Lisbon, within ninety days from and after said 13th day of May, 1913, and upon default on defendant’s part in making sucb payments within the time aforesaid, tbe contract will be canceled and annulled.

On August 6,1913, defendant’s counsel moved tbe court on due notice for an order amending tbe judgment aforesaid so as to permit defendant to make sucb payments to tbe clerk of tbe district court of sucb county for plaintiff’s benefit, and that upon tbe payment thereof judgment be entered, vesting in tbe defendant sucb title to said real property as plaintiff possessed at tbe date of sucb contract. In support of sucb motion an affidavit was produced by defendant’s counsel, stating in substance and effect that defendant bad informed plaintiff’s attorneys that be was ready and willing to comply with tbe terms of said judgment by making tbe payments therein required, and bad requested plaintiff’s attorneys to procure from plaintiff a quitclaim deed to said premises, to be delivered, pursuant to tbe terms of sucb judgment, upon tbe payments being made as aforesaid, and that plaintiff’s attorneys bad failed to secure sucb quitclaim deed. On sucb showing tbe order complained of was made.

We are entirely clear that tbe district court bad legal authority to make such order, and tbe same must be affirmed. Whether tbe show*139ing on snob motion was technically sufficient to warrant tbe making of tbe order it is not material to consider, for it is, we think, clear that tbe court, on its own motion and without any showing whatever, had the right to thus amend the judgment. Such amendment in no manner affects the merits of the case. The amendment relates merely to a matter wholly within the discretion of the trial court. It does not in the least affect the merits as adjudicated by the judgment. The case falls squarely within the rule settled and announced by this court in Tyler v. Shea, 4 N. D. 377. The portion of the opinion relating to this point will be found on pages 387 to 389 inclusive. That decision is controlling of the case at bar.

Affirmed.