Doane v. Glenn

• Decision Date: 01 February 1872
• Citation: 1 Colo. 454
• Parties: DOANE et al. v. GLENN et al.
• Court: Colorado Supreme Court

1 Colo. 454

DOANE et al. v. GLENN et al.

Supreme Court of Colorado

February, 1872

Error to District Court, Arapahoe County.

UPON motion to strike the bill of exceptions from the record.

Messrs FRANCE & ROGERS, in support of the motion.

Messrs CHARLES & ELBERT, contra.

BELFORD J.

The defendants in error move to strike from the record the bill of exceptions, and rest the motion on two grounds.

It appears that at the June term of the district court the judgment in this case was entered up. The plaintiffs in error were allowed thirty days to prepare a record and file bond and sixty days to settle their bill of exceptions. By the inadvertence of the clerk the order made by the judge in reference to filing the bill of exceptions was omitted from the record. This order was made at the last hour of the last session of the term, and the omission was not discovered until some weeks after. At the ensuing term of the court the plaintiffs in error, having given notice to the attorneys of the defendants, made their application to the court to have this omission supplied. This application was founded upon affidavit of Doane's attorneys, which set up the facts that the order had been made by the judge and omitted from the record by the clerk. The judge, action on his own recollection of what had occurred, together with what appeared from the affidavits, allowed the omission to be supplied.

It is claimed by defendant's counsel that the notice above referred to was insufficient because the same was served on the attorneys and not on the parties. That final judgment having been entered at the July term, their connection with the case by operation of law had ceased, and that the amendment of the record must be regarded as having been made without notice, and therefore not valid or binding.

We find ourselves unable to sanction this claim. It is a noticeable fact that the same counsel who appeared for the defendants below appear for them here. There seems to be no breach in the line or continuity of employment.

While it is generally true that the power of the attorney, under his general warrant, expires when judgment is rendered, yet it is equally true that the power of the attorney will be retained even after the entry of final judgment on the record, and beyond the purpose of merely superintending the execution of the same. If a writ of error be brought against his client, it has long been the practice to require that he should be served with notice. 2 Sel. Pr. 365. So the entering of final judgment by the defendant's attorney may be irregular. What objection is there in such case to serving him with notice of a motion to set it aside, and to call upon him to defend and make it good? It is his business at least to see that a regular judgment in favor of his client should be perfected and sustained when the court has awarded in his favor. Having conducted the suit, he is best able to resist all atttacks upon the judgment. Indeed, his own regularity is generally drawn in question by the proceeding. For a similar reason he is the proper person to be served with notice when the judgment or any other proceeding in which he has participated is sought to be set aside or questioned on the ground of merits, as is done in this case. We think that the case of Lusk v. Hastings, 1 Hill, 656, is decisive of this point; and if it were not we would still be induced to hold that the duty of an attorney does not cease to his client so long as the judgment obtained by him is menaced by further judicial action.

It is next objected that the curt could not, at a subsequent term, amend its records.

In Alhers v. Whitney, 1 Story, 310, Mr. Justice STORY says: 'It is plain that at the common law no judgment was amendable after the term at which it was entered; and amendments could be made in the process, pleadings and proceedings only while the cause stood in paper, and before judgment. The authority to amend then, even in England, in cases of this sort, is dependent upon, and limited by, statute. Mr. Tidd has laid this down as the clear doctrine of the courts in all cases of ordinary suits in English courts of practice. Judgments and records are there never allowed to be amended except, in the first place, where the case is within the reach of some statute, or, in the next place, when there is something to amend by; that is, when there is some memorial, paper or other minute of the transactions in the case from which what actually took place in the prior proceedings can be clearly ascertained and known.' Tidd, 713, 714.

We acknowledge the force of this doctrine, and question the right of allowing a judge to alter a judgment after the close of the term, when there is nothing to amend by; and he assumes to do it on the ground that the judgment, as entered does not express the intention of his mind at the time it was entered. To tolerate a practice of this kind might give a license to the judge to carry the records of his court, and the ultimate rights of parties, about the country in his head. Yet, notwithstanding what has been said above, the doctrine in this country, in reference to amendments of records, may be said to have crystalized into the following legal propositions, namely: That any error or defect in a record which occurs through the act or omission of the clerk of the court in entering, or failing to enter, of record...