Application of Beaver Dam Ditch Co. Crowell v. City of Cheyenne, 2044

• Decision Date: 21 September 1939
• Docket Number: 2044
• Citation: 93 P.2d 934,54 Wyo. 459
• Parties: APPLICATION OF BEAVER DAM DITCH CO. CROWELL v. CITY OF CHEYENNE
• Court: Wyoming Supreme Court

93 P.2d 934

54 Wyo. 459

APPLICATION OF BEAVER DAM DITCH CO. CROWELL v. CITY OF CHEYENNE

No. 2044

Supreme Court of Wyoming

September 21, 1939

Rehearing denied December 12, 1939.

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Proceeding in the matter of the application of the Beaver Dam Ditch Company for an adjudication of the priorities of rights to the use of water for beneficial purposes in Water District No. 1, viz., North Crow Creek, Middle Crow Creek, South Crow Creek, and Clear Creek, wherein H. P. Crowell, doing business under the firm name, style, and description of the Wyoming Hereford Ranch, filed a motion to modify a decree affecting his property and the rights of the City of Cheyenne. From an order denying the motion to modify a decree of the district court adjudicating certain water rights on a stream, the movant appeals.

Affirmed.

For the appellant, there was a brief by Edward T. Lazear and W. O Wilson, both of Cheyenne, and oral argument by Mr. Lazear and Mr. Wilson.

We are familiar with the Holt case, 22 Wyo. 212, in which the court apparently recognized the validity of the decree awarding the city 12.481 cubic feet per second of water from Crow Creek. That question was disposed of on demurrer, involving a question of collateral as distinguished from a direct attack on a judgment. The motion here is a direct attack upon the judgment and presents an array of facts never before presented for a modification of the judgment. We direct attention to the numerous instances since 1888, wherein the City of Cheyenne has sought to enlarge its water right from Crow Creek by applications for reservoir permits and otherwise, clearly indicating an effort on the part of the City to correct the error made in the decree of 1888. The tabulations officially prepared by the Board of Control as to water rights from Crow Creek have shown 12.48 cubic feet. It is nowhere shown that the City of Cheyenne ever claimed a water right of 12,000 feet. The purchasers of the Hereford Ranch relied upon these records. The modification of judgments for clerical errors is treated exhaustively in an annotation appearing in 10 A. L. R. 526, 67 A. L. R. 828. From the authorities there set forth, it appears that such modifications have been made after a lapse of from three to fifty years. Clerical errors are distinguished from judicial errors. Freeman on Judgment, 5th Ed. Vol. 1, Sec. 141; Sec 142--Limitations; Sec. 144--Illustrations of Improper Corrections; Secs. 145-146-7--Clerical Errors; Sec 152--Mistakes as to Relief Granted; Sec. 156--Statutes; Sec. 166--Laches; Sec. 237--Statutory Provisions. Courts have power to correct their records at a subsequent term to make them conform to what was actually done at the time, and to do so within a reasonable time, where no change of circumstances has arisen. Bernard v. Abel, 156 F. 649. The error here was in entering a different judgment from that which the court had ordered, and the rule is unquestioned that a court of record has inherent right and power at any time to correct or amend its judgment. San Francisco v. Brown, 96 P. 281. Where the order was entered by mistake of the clerk, the action of the court in setting it aside was proper. Boro v. Holtzhauer (Ky.) 67 S.W. 30. Courts have power to correct errors of clerks in entry of judgments to make them conform to judgments actually pronounced. Harn et al. v. Boyd (Okla.) 185 P. 1092. Correction of error of clerk could be made no matter how long thereafter. Martin v. Brown (Mo.) 144 S.W. 1116. Clerical errors in calculation as to which there is no limitation cannot be appealed until lower court passes on an application to correct. Seiler v. Northern Bank (Ky.) 5 S.W. 536. Entry of judgment by clerk is a ministerial act and may be corrected at any time by virtue of inherent power of court. San Joaquin Land Company v. West (Cal.) 33 P. 928. Where judgment includes relief, not warranted under issues, the record may be cleared of it. Nell v. Dayton (Minn.) 49 N.W. 981; Murphy v. Stewart, 43 U.S. 281. Courts have power to allow amendments to judgments; that the judgment entered may express what was rendered, but not judicial errors. Egan v. Egan (Cal.) 27 P. 22; Gagnon v. United States, 193 U.S. 451. Courts may correct entry of judgment in conflict with judgment rendered. Williams v. Hayes (Wis.) 32 N.W. 44. Rendition of judgment is judicial act. Coleman v. Zapp (Texas) 151 S.W. 1040; Tanner v. Wilson (Ga.) 192 S.E. 428; Rogers v. Rigell (Ga.) 188 S.E. 704; Reynolds v. Winship (Ark.) 299 S.W. 16; Ryon v. Thomas (Ind.) 3 N.E. 653; Clemens Company v. Insurance Company (Cal.) 71 P. 599. Garrison v. Davis (Utah) 54 P.2d 439; Weydeveld v. Weydeveld (Colo.) 67 P.2d 72; Silva v. Court (Nev.) 66 P.2d 422. A journal entry must speak the truth. Washakie Livestock Loan Co. v. Meigh (Wyo.) 33 P.2d 922; 15 C. J. 975; Flannery v. Eblen (Tex.) 106 S.W.2d 837; Stevens v. Court (Cal.) 59 P.2d 988. The function of a nunc pro tunc order is to make judgments speak the truth. Hawks v. McCormack (Okla.) 71 P.2d 724. Amendments can be made, if authorized by the record. Bowling v. Evans (Ky.) 96 S.W.2d 916. Laches are predicated on the proposition that Wyoming Hereford Ranch had knowledge of the 1888 decree as early as 1922. This is predicated upon an affidavit made in another case. The point is covered by a statement of this court in Hatten Realty Company v. Baylies, 42 Wyoming 89. The legislature cannot interfere with duties of courts. De Camp v. Central Company (Ariz.) 57 P.2d 311; Nevitt v. Wilson (Tex.) 285 S.W. 1079; Healy v. Westenberg, 47 Wyo. 375; Trust Company v. Burke, 4 Oh. Dec. 257. The court is bound to exercise sound discretion. Redewill v. Court of Maricopa County (Ariz.) 29 P.2d 475. Refusal to vacate may be an abuse of discretion. Ambrose v. Mortgage Company (N. M.) 34 P.2d 294. A judgment is defined by Wyoming Code, Sec. 89-2201, R. S. It is final when it terminates the litigation. Klever v. Seawall, 65 F. 373; City v. Deacon (Cal.) 34 P.2d 183; Dresser v. Dresser (Okla.) 22 pac. (2d) 1012; Meyer v. District Court (Mont.) 57 P.2d 778. A final adjudication between the parties is sufficient. Wurzer v. Geraldine (Mich.) 256 N.W. 439; Faulkner v. Faulkner (Ky.) 110 S.W.2d 405. The Beaver Dam case was never determined on its merits. A judgment outside of the issues is a nullity. Winters v. Birch (Okla.) 36 P.2d 907; Henson v. State Bank (Okla.) 23 P.2d 709. A judgment void on its face may be vacated. Michel v. Williams (Cal.) 56 P.2d 546. Statutes limiting power of courts within certain period to control their judgments are not applicable to non-judicial mistakes. Nevitt v. Wilson (Tex.) 285 S.W. 1079; Schloss v. Lennon (Minn.) 144 N.W. 148. The judgment in the Beaver Dam case is void. James v. Lederer-Strauss & Co., 32 Wyo. 377; City v. Power Co. (Utah) 17 P.2d 281. A valid decree must rest upon findings. Blaser v. District (Mont.) 53 P.2d 1141. There must be appropriate allegations in the pleadings to support a judgment. U. S. F. & G. Co. v. Company (Ore.) 50 P.2d 584; Forry v. Brophy (Okla.) 243 P. 506; City v. Fields (Okla.) 43 P.2d 64; Boulter v. Cook, 32 Wyo. 461. In the Holt case, the court considered the decree and not the record. The Holt case was a collateral attack, while this is a direct attack. The petition and order constituted the record. Poston v. Delfelder, 39 Wyo. 163. The Holt case was disposed of on the basis of the decree solely. It was an action for damages for an alleged unlawful use of water. A judgment is void unless the roll shows it to be valid. Hanson v. Rogers (Ida.) 32 P.2d 127. Where invalidity of a judgment is apparent from the roll, it may be vacated on motion at any time. Norton v. Baranov (Cal.) 35 P.2d 640. Proceedings to vacate or correct judgments may be brought under the statute; in equity, or by inherent powers. Fisch v. Court (Cal.) 43 P.2d 855; Clarke v. Lumber Company, 31 Wyo. 205; Luman v. Hill, 36 Wyo. 42; Sheep Company v. Murphy, 48 Wyo. 250. The following cases were brought in equity: May v. Penton, 45 Wyo. 82; Land Company v. Commissioners, 30 Wyo. 238; Harden v. Card, 17 Wyo. 210; Edward v. Cheyenne, 19 Wyo. 110. This court has inherent common law and equity powers independent of any statute. Healy v. Wostenberg, 47 Wyo. 375. A void judgment is no judgment. Nichols v. Court (Cal.) 28 P.2d 714. Equity may give relief. Company v. George, 44 Wyo. 25. Courts are a distinct department of government, whose provinces may not be invaded by the legislature. Partlow v. State (Ind.) 144 N.E. 661; Baldwin v. Anderson (Ida.) 18 P.2d 461. A court may correct its own mistakes. Steinmuller v. Liebold (N. D.) 175 N.W. 729. It may do so on its own motion (Harris v. Investment Company, 265 P. 306), and independent of statute. Trust Company v. Stockgrowers Bank (Nev.) 16 P.2d 368 and cases cited supra. No judgment was ever rendered by the judge on the merits of the action. The statutes distinguished rendition from the entry of judgment. Sec. 89-2201, 2212, 4902, 4906; Daley v. Anderson, 7 Wyo. 1; Hahn v. Bank, 25 Wyo. 467. The mistake was not made by the judge, but by the clerk. Williams v. Hayes (Wis.) 32 N.W. 44; City v. Brown (Cal.) 96 P. 281; Dutton Company v. Goss (Cal.) 247 P. 594; Breene v. Booth (Colo.) 40 P. 193. Upon failure to enter judgment, the court may order proper entry made. Willye v. Kent (Idaho) 152 P. 194. Campbell v. Spotts (Mo.) 55 S.W.2d 986; St. Onge v. Blakely (Mont.) 245 P. 532. Pronouncement of judgment is indispensable to lawful entry thereof. Abernathy v. County Treasurer (Okla.) 26 P.2d 939. Independent of statute, court has inherent power to correct clerical errors. Garrison v. Davis (Utah) 54 P.2d 439. Water claims in territorial procedure were filed under Chapter 61, Session Laws 1886. Courts must adhere...