The herald., 1897-02-02
. A NEW DEPARTURE.
A Riverside Judge Amends Judgment
Eighteen Months After Rendition.


The Riverside Case of Olive Byrnc,
plaintiff and respondent, vs. Abraham
Hoag and Lillian D. Hoag, carried on
| appeal to the supreme court, has been
reversed
The appeal by the defendants from a.
judgment against them entered No
vember %, 1895
In 1893 the plaintiff commenced the
action against the defendants to fore
close mortgage given by the latter to
secure note for $4,000. dated April 81,
1872, payable three years from date, with
IL per cent interest per annum. At the
time OF the commencement of the suit
the first installment of interest was due,
and 1t was alleged in the complaint that
no sum, either on the account of the
principal or interest on the said note
has been paid" and the prayer was for
Judgment for the sum of $4,000 and inter-
est, and that the usual decree be made
for sale Of the premises, the application
OF the proceeds to the satisfaction of the
whole of the note and for deficiency
Judgment. In the answer the defend
ants denied that there was anything
more due than the one years interest,
and prayed that the PLAINTIFF have no
greater relief than a decree with respect
to said interest. The court gave judg-
ment for $240 with interest thereon at
the rate of per cent per annum, from
April 27. 1S93 and for an attorneys fee
of $100 and costs, and decreed that the
mortgaged premises be sold to satisfy
that amount This was all the judgr
ment embraced. The decree was en-
tered November 81, 1893, and findings
were waived.
On August Is, 1895, more than a year
and a half after the entry of judgment.
plaintiffs attorneys served upon de-
PENDANTS a notice that on September 30
1895, they would move the court ION all
the papers on file in this action and the
record of said case" for leave to amend
the judgment so that it should read in
accordance with the form of judgment
annexed. The notice was accompanied
by an affidavit the substantial part of
which was as follows: THAT judgment
in said action was inadvertently entered,
failing to comply with the decision of the
court, in this, that said decree did not
provide for the payment of the principal
or interest thereafter to become due on
the note sued upon in this action; that
by inadwertence the clerk was allowed
to enter said defective Judgment; that
the defect in said judgment was not no.
ticed by the plaintiffs attorneys until
May, 1885, etc. This motion was op-
posed by the defendants, and on hearing
Of the motion, against the objection of
defendants, there was introduced pa
per endorsed opinion" sigE2d by the
Judge of the court in which it was said:
I'm this action plaintiff is entitled to
Judgment only for the interest on the
mortgage note now due and unpaid.
am satisfied that under the wording of
the note and mortgage, which are to be
considered together, that section 72S
should govern the foreclosure proceed
NJ - ynI
filed and there was no evidence that it
was in possession of the clerk of the
court and no evidence as to how 1t was
obtained. After the hearing of the mo-
tion the court ordered as follows: 1T
is ordered that the judgment entered In
this action on November %, 1893, be
amended to read as set forth in said no.
tice of motion, and that the same be
entered as of date November %, 1893.
This was dated December II, 1896, and
the judgment prepared by counsel for
plaintiff was then entered.
1T is quite clear" says the supreme
court that the court had no jurisdic-
ton to enter this second judgment. The
failure to enter it as plaintiff desired in
the first instance, in 1893, was not the re-
suit of any inadvertence, or the mis-
prision of the clerk The case does not
come within any of the authorities cited,
which hold that when the clerk has
failed to enter the judgment ordered by
the court, and the record shows that
Judgment should have been entered, then
such judgment may be entered as will
conform to the actual decision of the
court. In the case at bar it is not neces-
sary to inquire whether the paper
marked opinion" was properly allowed
In evidence, or what the meaning of the
paper is. The decree as entered in 1893
was signed by the Judge" and under
any view. it was his last direction to the
clerk, and was the decision of the case.
It has been held unnecessary for the
judge to sign Judgment. although it
mas neen the almost invariable custom
In this state for DEGREES In equity to be