Brittenham v. Robinson

• Court: Indiana Appellate Court
• Writing for the Court: BLACK
• Citation: Brittenham v. Robinson, 22 Ind.App. 536, 54 N.E. 133 (Ind. App. 1899)
• Decision Date: 16 June 1899
• Parties: BRITTENHAM v. ROBINSON et al.

22 Ind.App. 536

54 N.E. 133

BRITTENHAM

v.ROBINSON et al.

Appellate Court of Indiana.

June 16, 1899.

Appeal from circuit court, Wells county; E. C. Vaughn, Judge.

Motion by John Robinson and others, plaintiffs, to correct a judgment against Allen C. Brittenham, defendant. Defendant appeals from an order granting motion. Affirmed.Dailey, Simmons & Dailey, for appellant. Sharp & Sturgis, for appellees.

BLACK, J.

The appellees, by their verified motion filed on the 25th of February, 1898, sought the correction of a judgment which they had recovered on the 2d day of March, 1896, in the court below, against the appellant, in an action of replevin, wherein the appellees were the plaintiffs and the appellant was the defendant. At the hearing the court sustained the motion, and ordered the entry nunc pro tunc of the judgment corrected as asked in the motion. On this appeal from that action the record of the proceeding for the correction of the judgment is brought before us. The judgment was originally entered as follows: “It is therefore ordered, adjudged, and decreed by the court that the plaintiffs recover of the defendant the personal property mentioned in plaintiffs' complaint and affidavit in replevin, to wit [here followed a particular description of the property, concerning which no question is involved on this appeal], and that defendant unlawfully detains the same. It is further adjudged by the court that the plaintiffs recover of the defendant their costs herein expended.” On the hearing the court ordered the entry of judgment nunc pro tunc, as follows: “It is therefore ordered, adjudged, and decreed by the court that the plaintiffs recover of the defendant the property described in the complaint, to wit [describing the property as in the original entry of the judgment]; that said property is of the value of $280, and that the defendant unlawfully detains the same from the plaintiffs. It is further considered and adjudged by the court that upon the failure of the defendant to deliver up to the plaintiffs said property the plaintiffs recover of the defendant said sum of $280, with six per cent. interest thereon per annum. It is further considered and adjudged by the court that the plaintiffs recover of the defendant their costs and charges in this behalf paid out and expended.” It was claimed in the motion and found by the court that the judgment as originally entered was erroneously entered by the clerk on account of his oversight, mistake, and omission. It was stated in the motion and proved on the hearing thereof that in the court docket of the term at which said action of replevin was tried and the judgment in question was rendered were the following notes of the court: “3 Wed. Sub. to Court. Ev. heard. Cause taken under advisement.” “5 Mon. Find. and Judg. that plaintiffs are entitled to the possession of the property described in the complaint, and that the property is of the value of $280.00. Ex. by Deft.” It was shown by affidavits on the hearing that the attorneys representing the appellees in the making of this motion were their...