Beyer v. Robinson
| Citation | 156 N.W. 203,32 N.D. 560 |
| Decision Date | 10 January 1916 |
| Court | United States State Supreme Court of North Dakota |
Appeal from the District Court of Stark County, Crawford, J.
Affirmed.
M. A Hildreth, for appellant.
District courts have the power to amend their records and to correct same to correspond to the actual facts. The original decree in this case was so amended by order of the court, before appeal and supersedeas bond, from the original judgment entered. The bond, therefore, had no effect upon the corrected decree. The appeal was from the decree erroneously entered, and not from the amended decree and judgment. Dedrick v. Charrier, 15 N.D. 515, 125 Am. St. Rep 608, 108 N.W. 38.
The order fixing the supersedeas bond was void because of lack of notice to the adverse party, of application therefor. Rev Codes 1905, § 7220, Comp. Laws 1913, § 7836.
Bangs, Netcher, & Hamilton and W. J. Mayer, for respondents.
There is but one judgment in this action, and it is from such judgment that the appeal is taken. The court had the right to correct clerical mistakes in its records, and to make them show the judgment actually intended to be entered. 15 Enc. Pl. & Pr. 220.
So long as a judgment remains unexecuted, the court has the undoubted right to make or allow amendments to agree with the facts and with what was actually intended, and to make the judgment speak the truth. McClure v. Bruck, 43 Minn. 305, 45 N.W. 438.
The appellate court, on appeal, may correct the judgment, instead of reversing the case. The amended decree is only in effect, that the judgment--former judgment--be corrected to conform to the facts and to the intent of the court. There is but one judgment, and an appeal taken therefrom amounts to and is an appeal from that judgment, notwithstanding any amendment. 15 Enc. Pl. & Pr. 225, 228.
An interlocutory order, fixing the amount of supersedeas bond on appeal, is not subject to collateral attack. Notice of application for such order is not a condition precedent to jurisdiction. The action was pending. Comp. Laws 1913, § 7966; 15 Enc. Pl. & Pr. 317; 17 Am. & Eng. Enc. Law, 1041.
Supersedeas to stay execution is effective if filed and approved prior to sale thereunder. 20 Enc. Pl. & Pr. 1240, 1246; 17 Am. & Eng. Enc. Law, 1004, 1005.
This is still another chapter in the litigation begun by Investors' Syndicate v. Letts, 22 N.D. 452, 134 N.W. 317, and continued in Beyer v. Investors' Syndicate Co. 31 N.D. 247, 153 N.W. 476, where a statement of facts appears. In 1912 Beyer brought an action to determine adverse claims involving the N.W. 1/4 of section 16, 139-94, and three other quarter sections in Stark county, North Dakota. This original complaint gave a correct description of the lands involved, but shortly thereafter an amended complaint was served in which this particular quarter was erroneously described as the S.E. 1/4 of the same section. Judgment was entered after trial, on August 26, 1913. Throughout the findings of fact and judgment this quarter is described both correctly and incorrectly, both descriptions appearing in those papers. The judgment, however, contained the erroneous description. Execution issued in August, 1913, containing the wrong description for this quarter and the correct description for the other three, and the sale was made thereunder. Shortly after the sale and on January 13, 1914, upon due application, the trial court corrected the findings of fact and judgment, and incidentally vacated the sale in so far as it affected this particular quarter. On the 29th of January, 1914, a new execution was issued upon the corrected judgment by which levy was made upon the proper land. After the levy, but before the sale, the Investors' Syndicate, the defendant in the action, determined to appeal, and applied to the court for an order fixing a supersedeas bond. The court fixed the bond at $ 300, and the same was executed, and the trial court ordered all further proceedings suspended, which order was served upon Beyer's attorney. It is conceded, however, that no notice of this application was given to Beyer, and there are several serious irregularities in the form of the bond itself. This lawsuit hinges upon the effect of the bond. If the said bond and the order of the trial court given thereon stayed further proceedings, this judgment should be affirmed. However, plaintiff believed the irregularities so serious that the bond itself amounted to a nullity, and ignored the order of the trial court suspending proceedings. The sale of the land was accordingly made on March 10, 1914, two weeks after the appeal to this court had been perfected. In September, 1914, the court, upon due notice, set aside the sale. This appeal is from such order. The original appeal reached this court and was affirmed June 4, 1915, the opinion being found at 31 N.D. 247, 153 N.W. 476.
Appellant insists that the supersedeas bond and the order of the trial court based thereon are nullities because the application to the trial court to fix the amount of the bond was made without notice to the adverse party, and, as he says, the supersedeas bond merely stayed the old, erroneous judgment, and did not apply to the amended and corrected judgment. Respondent, upon his part, contends that those were mere irregularities which could only have been attacked in the district court, and that the order of the trial court superseding all proceedings was made in the exercise of the discretion of the trial court, and cannot be successfully assailed in those proceedings.
(1) Taking up the first proposition, we inquire whether or not the interlocutory order of the trial judge, fixing the amount of supersedeas bond, is subject to attack at this time. Section 7828, Comp. Laws 1913, reads "If the judgment appealed from directs the sale or delivery of possession of real property, except in actions for foreclosure of mortgages, the...
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