#### LAURA M. KLINEFELTER, Respondent, v. E. A. ANDERSON, Appellant.

(230 N. W. 288.)

Opinion filed March 17, 1930.

Rehearing denied April 24, 1930.

*Grum & Grwm,*for appellant.

*418*J. ' N. McCarter,*for respondent.

Bubb, J.

This is an appeal from an order amending a judgment to conform to the original order for’judgment; and from the judgment as amended, which is the substituted judgment in this case.

' This action was commenced in June 1927 for the purpose of can-celling a contract for the sale of land entered into by and between one J. W. K. and this defendant, which contract was assigned, transferred *419and set over to tbe plaintiff. Tbe plaintiff asked judgment that the contract be terminated, “and that she have possession of tbe property therein described; that tbe court appoint a receiver to manage and control said property and to collect tbe rents and profits therefrom and to apply tbe same for tbe use and benefit of plaintiff pending tbe final determination of this action, and that she have such other and further relief as may be proper.”

Tbe case was tried in March 1928 and on October 2, 1928 judgment was rendered in favor of tbe plaintiff; tbe order for judgment being as follows:

> “Ordered, adjudged and decreed, that tbe plaintiff, Laura M. Kline-felter have judgment against tbe defendant, E. A. Anderson for tbe said sum of $5,680.44; that tbe contract heretofore entered into be terminated, unless tbe defendant shall 'on or before tbe 29th day of November, 1928, pay to tbe plaintiff tbe said sum of $5,680.44, together with interest at tbe rate of 8 per cent per annum from date and costs in tbe sum of $75.00, and that in tbe meantime, as a condition precedent to granting him tbe right to pay said sum, tbe said defendant, E. A. Anderson, shall on tbe first day of each month pay to tbe said plaintiff tbe sum of $50.00 per month.”

On tbe 18th of October, 1928 tbe clerk entered judgment in part, as follows:

> “Ordered, adjudged and decreed by tbe court that tbe plaintiff have judgment herein for tbe sum of $5,680.44 and interest at tbe rate of eight- per cent per annum from tbe 29th day of March, 1928, and for tbe costs and disbursements herein in tbe sum of $75,00, making a total judgment in favor of tbe plaintiff and against tbe defendant-in tbe sum of $5,982.29 and costs in tbe sum of $75.00.”

It will be observed that tbe judgment entered did not conform to tbe order of judgment given by tbe court.

On November 27, 1928, tbe defendant made application to tbe court for an order to show cause why tbe time given to him to redeem should not be extended until tbe first day of March 1929, and in bis application for such order stated “that- tbe defendant intends to and will, if given an opportunity, redeem said property, and that be will, doubtless, be in a position to do so by tbe first of March, 1929, if tbe court will extend bis period of redemption to said date.”

*420On December 12, 1928 tbe court granted this application, making a “Deoree” wherein tbe court said:

> ■ “Now, therefore, It is hereby considered, ordered and decreed by the Court that the original decree heretofore entered herein, be, and the same is hereby, modified and said defendant is hereby granted to and including the First day of March, 1929, within which to redeem tire land contract involved herein, and reinstate the same upon the payment of the amount, due thereon, provided, that said defendant shall pay to the plaintiff a monthly rental of $50 on the first day of each month from and after the entry of this decree.”

This decree was served upon plaintiff on January 9, 1929.

In January, 1929, the plaintiff applied to the court for a restraining order to prevent the defendant from removing any of the personal property situated in the building on the real estate. On the 9th of January, 1929, an order was 'made by the court directed to the defendant to show cause why such restraining order should not be granted.

On -January 16, 1929, the defendant appeared and moved to quash this order to show cause and to dismiss the proceedings on the ground, among other things, that a judgment had been entered *“on the 29ih day of*March, *1928,*and that more than six months have elapsed since the entry of said judgment, and that the time to appeal therefrom has expired and that said judgment being in plaintiff’s favor is final, in so far as such plaintiff is concerned.” This motion to quash was sustained on January 18, 1929.

On April 19, 1929, the plaintiff made a motion to amend the original judgment to conform to the order for judgment as entered by the court on October 2, 1928. The court issued an order to show cause why such application should not be granted, returnable May 1, 1929.

On the return date the defendant appeared and in his return set forth:

> “2. That on the 18th day of October, 1928, Findings of Fact, Conclusions of Law and Order for Judgment were entered herein at the instance of the plaintiff, and that said order for judgment, among other things, contained the following:

> *“*‘That the plaintiff, Laura M. Klinefelter, have judgment against the defendant, E. A. Anderson, for the sum of $5,680.44.’

> “8. That at the same time said Order for Judgment was entered, a *421judgment was entered herein in favor of the plaintiff and ag'ainst the defendant in the following language:

> *“*‘Ordered, adjudged and decreed by the court that.the plaintiff'have judgment for the sum of $5,680.44 and interest at the rate of eight per cent per annum from the 29th day of March, 1928, and for the-costs and disbursements herein, in the sum of $75.00, making a total judgment in favor of the plaintiff and against the defendant in the sum of $5,982.29 and cost in the sum of $75.00.’

> “4. This judgment has never been appealed from or vacated, and is still in full force and effect.

> “5. The time for appeal has now passed, and during the month" of January, plaintiff made an application to this court for an order modifying and enlarging the scope of said judgment. Upon a hearing on the matter at Steele, the plaintiff’s application was denied and no appeal was ever taken by the plaintiff from the order overruling aird denying plaintiff’s said' application. More than 60 days have elapsed since said order was entered and the time for appeal therefrom has expired, and the order refusing modification of said judgment is now Bes Adjudicata, and cannot be relitigated at this time.”

On May 7, 1929, the court granted the motion to amend the original judgment, made findings of fact and conclusions of law showing, that judgment had been entered originally on October 2, 1928 giving to the plaintiff an order for judgment as hereinbefore set forth, and that the judgment ordered did not conform thereto, and ordered as follows:

> “Now therefore, Upon motion of J. N. McCarter plaintiff’s attorney it is hereby ordered that you, Finess Powell, Clerk of the above named court do execute under the seal of this Court, enter, file.and record in your judgment Docket, that annexed amended judgment in place of, in lieu of, and to take the place of that judgment now of record in the above entitled action; and, that you the said Finess Powell said clerk of court do file and record the said amended Judgment as of the date upon which you receive this order. It is ordered: that before execution issue hereunder copy of this order and notice of entry of judgment hereunder, be served on defendant. By the Court.”

The judgment was amended that day.

On October 17, 1929, the defendant appealed to this court “from that certain amended judgment made and entered herein on the 9th *422day of May, 1929, in favor of the plaintiff and against the defendant, and hereby demands a retrial of the issues involved herein.”

The specifications of error are as follows:

> “1. The court erred in overruling the answer and return, and the motion to quash the order to show cause herein.

> “2. The court erred in ordering the amended judgment entered herein.

> “3. The court erred in entering the amended judgment herein.”

No judgment was entered in March, 1928, decreeing a foreclosure. The motion to quash made in January, 1929, seems to have been based on a misapprehension arising from the fact that the case was tried in March, and doubtless owing to the change of counsel it was assumed judgment was’ entered then. The order for judgment was not made until October, hence we ignore these proceedings.

The real issue is the power and authority of the court in May, 1929, to order the clerk to correct his mistake and enter judgment in accordance with order of judgment made in October, 1928, with the change of conditions therein made by order of December 12, 1928, the latter order being served January 9, 1929.

This is not a case where it is claimed the court made a wrong decision or judgment or other error of law, to remedy which there must be a new trial, an appeal, or other form of procedure. The court determined the case in favor of the plaintiff; but the clerk did not enter the judgment ordered by the court. When the court made its conclusions of law and order for judgment in writing, signing the same, the judgment was complete. As shown in Comstock v. Boyle, 134 Wis. 613, 126 Am. St. Rep. 1033, 114 N. W. 1111, “the principle is also well settled in this state that if the court pronounces judgment from the bench (with us, signs the Order, § 7667), and all that remains to be done is the clerical duty of reducing the judgment to writing or entering the same or both, the judicial act is complete. So far as the court is concerned, the judgment has been rendered notwithstanding the fact that the clerical acts necessary to preserve the evidence of the judgment have not been performed. ... In the present case the court filed findings and ordered the entry of the judgment in accordance therewith. The entire judicial act was then performed. There only remained the purely clerical duty of reducing it to writing and entering it of record. *423If a mistake was made in tbe entry, so tbat tbe judgment as entered did not accord witb tbe judgment ordered, sncb mistake might be corrected even at a subsequent term. . . .”

“Tbe right to correct any mere clerical error, so as to conform tbe record to tbe truth, always remains.” Bank of United States v. Moss, 6 How. 31, 38, 12 L. ed. 331, 334. And this applies “even after term time,” (Sibbald v. United States, 12 Pet. 492, 9 L. ed. 1169) “and so tbe neglect or mistake of tbe clerk may be corrected.” The Palmyra, 12 Wheat. 1, 10, 6 L. ed. 531, 534. In Beyer v. North American Coal Co. 42 N. D. 495, 173 N. W. 787, we held “tbe clerk of tbe district court acts in a ministerial capacity in entering judgments. He must enter such judgment as tbe court has ordered, and none other. And where tbe clerk enters a judgment different from that ordered tbe court may order tbe judgment to be amended so as to conform to tbe order for judgment.” This is based upon tbe principle tbat “tbe right to remedy mistakes is an inherent power witb tbe courts,” which may be exercised after judgment, in furtherance of justice, by correcting mistakes as provided for in § 7482 of tbe Compiled Laws. Dedrick v. Charrier, 15 N. D. 515, 125 Am. St. Rep. 608, 108 N. W. 39. See also Dutton Dredge Co. v. Goss, 77 Cal. App. 727, 247 Pac. 594.

It is not claimed tbat any rights of third parties are affected or will be affected. This controversy is between tbe parties to tbe judgment only and is decided witb this in mind. Tbe right claimed is merely tbe right to have tbe records show what is in fact tbe decision and judgment. As said in Day v. Goodwin, 104 Iowa, 374, 65 Am. St. Rep. 465, 73 N. W. 868, “in passing upon tbe right to this order, it is immaterial whether tbe proceedings in tbe case were wrong or irregular, valid or invalid. Tbe sole matter to consider is, shall tbe failure of a mere ministerial officer to perform bis duty have tbe effect to falsify tbe action of tbe court?”

Tbe appellant says tbe application to have tbe judgment as entered conform to tbe order comes too late; tbat tbe application is made after tbe statutory time allowed for appeal and therefore tbe judgment has become final, and cannot be changed or' amended by tbe court.

Under tbe common law, there were three general principles governing amendments of judgment. First, “in fieri” tbe court could change or amend as justice warranted. Second, after a case bad proceeded to final *424judgment tbe court bad power during term time to amend or modify as required in tbe interests of justice. Third, after term time all power over tbe judgment ceased, unless reserved by statute. However, tbis dealt witb tbe judgment or decision in matters of law. It bad no bearing on mistakes. There are exceptions to tbe rule that a judgment becomes final by lapse of time — either tbe end of tbe term, or tbe expiration of tbe time limit fixed by statute. One of these is “that clerical errors and misprisions, either in tbe entry of judgment or due to inadvertence of tbe court may be corrected.” 14 Cal. Jur. 991, 992; Wiggin v. Superior Ct. 68 Cal. 398, 9 Pac. 647; Re Schroeder, 46 Cal. 305, 316. There are no terms of court in tbis state in tbe common law sense of that word. Martinson v. Marzolf, 14 N. D. 301, 309, 103 N. W. 937.

“That a court of general jurisdiction has tbe right, regardless of lapse of time, to amend or correct errors or misprisions in its records, so that its records shall conform to and speak tbe truth, cannot be questioned. . . . Tbe power of tbe court in tbis regard is frequently exercised where tbe clerk fails to correctly or fully set forth in tbe record tbe order or judgment rendered.” McKannay v. McKannay, 68 Cal. App. 709, 230 Pac. 219; Halpern v. Superior Ct. 190 Cal. 384, 212 Pac. 916.

In 1 Freeman on Judgments, 5th ed. 281, § 145, tbe rule is set forth as follows: “All courts have inherent power, independent of statute, to correct clerical errors at any time, and to make tbe judgment entry correspond witb tbe judgment rendered. Tbis power outlasts tbe certification of tbe judgment to a court of concurrent jurisdiction. It is applicable to all mistakes in tbe entry of judgment whether tbe correction consists in introducing something which ought to be there, or in excising something which ought not to be there. Tbe power extends to expunging in toto a mistakenly entered judgment and substituting the true one thorrgh exactly to tbe contrary. It is immaterial in what tbe inaccuracy consists or how far tbe entry deviates from tbe judgment rendered.”

Even in cases where judgments are final in their nature, there may be conditions attached thereto which should be changed from time to time as required. In Union Trust Co. v. Curtis, 182 Ind. 61, L.R.A.1915A, 699, 105 N. E. 562, tbe trial court bad ordered judgment foreclosing a *425railroad and ordered tbe sale upon certain conditions later found impossible of fulfillment. Tbe court, after tbe time tbe judgment became final, changed these conditions in tbe judgment. It was held: (p. 565) this, of course, was within tbe power and duty of tbe court, either on its own initiative, or at tbe instance of appellant or others in like situation. While tbe essential judicatory part of a decree may not be changed by a court after tbe term when it was rendered, those parts which are directory as to the mode of its execution may be; and of such a nature is tbe amount of money required to be bid for the property.” In tbe case at bar the court bad entered judgment for tbe plaintiff and ordered tbe contract to be cancelled imless tbe property involved was redeemed within tbe time specified. Tbe court bad tbe power to change this condition upon proper showing, and within tbe time when *the judgment became*final. *Upon the application of the appellant*the court did change this condition and extended the time for redemption. True, appellant did not have a new judgment entered embodying tbe changed conditions, but be received from tbe court, an order to that effect. It was bis duty to have bad such a judgment entered, and tbe law assumes “that which ought to have been done is to be regarded as done in favor of him to whom and against him from whom performance is due.” Comp. Laws, § 7263. Even if we were to bold tbe power of tbe court to correct a ministerial error is limited to tbe time given for appeal, which is not tbe case, tbe appellant cannot now be beard to say that tbe real judgment does not date from tbe time tbe new order was secured, and so we consider tbe judgment sought to be modified as of that date. There was no change in tbe order for judgment given by tbe court except as to tbe condition requested by appellant^ and tbe judgment which tbe appellant should have bad entered was not ordered nunc pro tunc. Tbe order which tbe plaintiff received, requiring tbe judgment to be entered in conformity with tbe order for judgment, is dated May 7, 1929, which is less than six months from tbe date of tbe order appellant secured granting an extension of time in which to redeem and thus within tbe period allowed for appeal, were this material.

Tbe appellant says tbe judgment as originally entered was such judgment as tbe plaintiff “elected to take” and therefore “she is absolutely precluded from thereafter demanding a cancellation.” In support of this be cites tbe cases of Alden v. W. J. Dyer & Bro. 92 Minn. 134, 99 *426N. W. 784; Mathews Piano Co. v. Markle, 86 Neb. 123, 124 N. W. 1129; Ramey v. Smith, 56 Wash. 604, 106 Pac. 160; Stewart & H. Drug Co. v. Ross, 74 Wash. 401, 133 Pac. 577; and Parke & L. Co. v. White River Lumber Co. 101 Cal. 37, 35 Pac. 442. None of these cases is applicable to the situation at bar. This is not a case where the plaintiff commenced an action to get a personal judgment for an amount due upon a contract. It is a case where the plaintiff commenced an action to cancel a contract and have the real property involved therein reinvested in her. To do this she had to show the contract, the amount for which the property was sold, the default and the amount due on the contract. The defendant was granted the right to redeem. In order to redeem it was necessary for the court to find specifically the amount due. This is what was done in the case at bar. Having the amount stated specifically was not an election on the part of the plaintiff to taken personal judgment. The order for judgment precludes any such idea. It shows what the judgment wTas. The defendant cites the case of Poirier Mfg. Co. v. Kitts, 18 N. D. 556, 120 N. W. 558, but this case is not applicable. The case cited was merely an action to recover the purchase price and nothing more. The pleadings so showed.

It is true the clerk entered a mere personal judgment, and it may be urged that counsel for the plaintiff must have drawn the order. This is immaterial. The clerk does not sign any and every document and judgment tendered him. It is his business to sign and enter judgment in conformity with the order for judgment even against the protest of the judgment creditor.

The court having the power to correct mistakes of the clerk by entering an order requiring the judgment to conform to the order for judgment, and having such control over the judgment as gave it authority to exercise this power at the time it was exercised; and the appeal simply challenging the power to do so under the circumstances set forth the judgment of the lower court is affirmed.

Burke, Ch. J., and Nuessle, Bibdzell and ChristiaNSON, JJ., concur.