Donaldson v. Henry

• Court: Idaho Supreme Court
• Writing for the Court: HOLDEN, J.
• Citation: Donaldson v. Henry, 63 Idaho 467, 121 P.2d 445 (Idaho 1941)
• Decision Date: 03 November 1941
• Docket Number: 6894
• Parties: ANNA E. DONALDSON, and J. L. DONALDSON, Assignee of Anna E. Donaldson, Appellants, v. ORIN M. HENRY and EUNICE HENRY, his wife; H. E. SEVERNS and JANE DOE SEVERNS, his wife, Respondents

121 P.2d 445

63 Idaho 467

ANNA E. DONALDSON, and J. L. DONALDSON, Assignee of Anna E. Donaldson, Appellants, v. ORIN M. HENRY and EUNICE HENRY, his wife; H. E. SEVERNS and JANE DOE SEVERNS, his wife, Respondents

No. 6894

Supreme Court of Idaho

November 3, 1941

Rehearing denied February 4, 1942

MORTGAGES-FORECLOSURE DECREE, AMENDMENT OF-APPEAL AND ERROR-QUESTIONS NOT REVIEWED.

1. The power of a court to amend its record is limited to making such record correspond to the actual facts, but it cannot under the form of amending its records, correct judicial errors or make of record an order or judgment not in fact given. (I. C. A. sec. 1-1603.)

2. A mortgage foreclosure decree, defective as first entered in not naming defendant personally liable for payment of mortgage debt, may be amended at any time by adding a clause designating the defendant who is personally liable, where the record clearly shows who he is. (I. C. A. secs. 1-1603, 9-101.)

3. The record showing that a suit was commenced to foreclose mortgage securing notes executed by husband and wife, that mortgaged property was practically worthless, that husband was named in complaint in foreclosure as a defendant and was also so named in decree of foreclosure, and that court ordered judgment against defendant as prayed for in the complaint, clearly disclosed that husband was personally liable for payment of mortgage debt so as to authorize amendment of foreclosure decree by adding a clause designating husband as person personally liable. (I. C. A secs. 1-1603, 9-101.)

4. The record showing execution of mortgage, entry of foreclosure decree and that mortgagor transferred the mortgaged property and that by decree of foreclosure, court adjudged that transferee "assumed and promised to pay" the mortgage debt clearly disclosed that transferee was personally liable for payment of mortgage debt, so as to authorize amendment of foreclosure decree by adding a clause designating transferee as person personally liable. (I. C. A secs. 1-1603, 9-101.)

5. Questions not briefed or argued would not be considered.

Rehearing denied February 4, 1942.

APPEAL from the District Court of the Seventh Judicial District of the State of Idaho, in and for Canyon County. Hon. Thomas E Buckner, Judge.

Motion to amend decree of foreclosure. Order denying motion. Reversed, with directions.

Order reversed, with directions. Costs awarded to appellants.

Dunlap & Dunlap, for Appellants.

Every court of record has control over its own judgments, records, decrees and orders, and power as well after a term has ended as while it lasts to correct apparent or proved clerical mistakes and misprisions in them, and to cause they to speak the truth. (10 A. L. R. 526 (Annotation); 67 A. L. R. 829 (Annotation); 126 A. L. R. 956 (Annotation); Jones v. Gallagher (Okla.), 166, P. 204, 10 A. L. R. 518; National Council K. & L. of Sec. v. Silver, 138 Minn. 330, 164 N.W. 1015, 10 A. L. R. 523.)

If anything has been omitted from the judgment which is necessarily or properly a part of it, and which was intended and understood to be a part of it, but failed to be incorporated in it through the negligence or inadvertence of the court or council, or the clerk, the omission may be supplied by an amendment even after the term. (34 Corpus Juris 235, Sec. 454; King v. State Bank, 9 Ark. 185, 47 Am. D. 739; Sinnock v. Marney, 250 Ill.App. 266; Enderlin Farmers Store Co. v. Witliff, 56 N.D. 380, 217 N.W. 537.)

Scatterday & Scatterday and F. A. Hagelin, for Respondents.

An amendment for the correction of a judicial error must be presented to the Court within six months after the close of the term during which the judgment was rendered. (Sec. 5-905 I. C. A.; Scamman v. Bonslet, 118 Cal. 93; 50 P. 272; 62 Am. St. 226; Mathers v. Mathers, 42 Idaho 821; 248 P. 468; Commonwealth Trust Co. v. Lorain, 43 Idaho 784; 255 P. 909; McAllister v. Erickson, 45 Idaho 211; 261 P. 242.)

While a Court of record has inherent power to cause its act and proceedings to be correctly set forth in its records, it cannot, under the form of amendment of its records, correct a judicial error or make of record an order or judgment that was, in fact, never given. The power of a Court to change its judgment, as well as the time within which such change can be made, depends upon different principles. (State v. Douglass, 35 Idaho 140; 208 P. 236; Fall River Irrigation Co. v. Swendsen, et al., 41 Idaho 686; 241 P. 1021; Occidental Life Insurance Co. v. Niendorf, 55 Idaho 521; 44 P.2d 1099.)

HOLDEN, J. Budge, C.J., and Givens, Morgan, and Ailshie, JJ., concur.

OPINION

HOLDEN, J.

August 24, 1928, Orin M. Henry and Eunice Henry, husband and wife, made, executed and delivered to Anna E. Donaldson certain promissory notes aggregating the sum of $ 1500.00 and to secure the payment of such notes executed and delivered a real estate mortgage upon certain lands located in Canyon County, Idaho, then owned by the Henrys.

May 27, 1933, she filed an application for leave to foreclose the mortgage in the District Court of the Seventh Judicial District of the State of Idaho, in and for Canyon County. It was thereby shown at the time the notes and mortgage were given it was represented the mortgaged property was well worth the money borrowed; that notwithstanding this representation the mortgaged property was at that time unsalable and practically worthless, and that the Henrys had abandoned it. On that showing the same day the application was filed, an order was made granting leave to foreclose.

June 5, 1933, complaint in foreclosure was filed against the Henrys and H. E. Severns and Jane Doe Severns, his wife, alleging on information and belief the Henrys had sold and conveyed their interest in the mortgaged property to the Severns, and that the Severns, by such conveyance, "assumed, promised and agreed to pay and perform each of the obligations of said notes and mortgages imposed upon the defendants Orin M. Henry and Eunice Henry." On the same day, to-wit, June 5, 1933, summons was issued and personally served on all these defendants in Canyon County, Idaho.

August 4, 1933, the case was tried by and before Hon. John C. Rice, then judge of the said district court. Decree of foreclosure was signed by the trial judge. It was dated August 3, 1933, a day before the case was tried, evidently a clerical mistake in that the case was not tried on the third day of August, but on the following day, August 4, 1933, on which date it was filed. An order of sale was thereafter issued directing the sheriff to sell and the sheriff accordingly sold the mortgaged property, following which a deficiency judgment was entered against respondents.

September 12, 1933, Judge Rice entered the following order:

". . . whereas the court entertains grave doubt as to the validity of said Deficiency Judgment, it is ordered that execution of said deficiency judgment be stayed until the further order of the court."

October 23, 1933, appellant Anna E. Donaldson filed a motion to set aside the last above quoted order upon the grounds that the provisions of Chapter 150, 1933 Session Laws, were "inapplicable to the present case" and that the property was, "for all practical purposes, worthless," and for that reason was bought in at the sheriff's sale for a nominal sum.

The motion was heard November 18, 1933. November 21, 1933, Judge Rice entered the following order:

"It is ordered by the court that the said motion of plaintiff be, and the same is granted, and that that certain order made and entered herein September 12th, 1933, staying execution upon the deficiency judgment docketed herein, be, and the same is hereby vacated, set aside and held for naught."

December 15, 1933, appellant Anna E. Donaldson assigned the deficiency judgment to appellant J. L. Donaldson. Some years later, to-wit, October 26, 1939, the Henrys and Severns moved to vacate the deficiency judgment. October 31, 1939, the court (Hon. Thomas E. Buckner, District Judge, presiding) ordered the deficiency judgment vacated and set aside. Whereupon J. L. Donaldson appealed from that order to this court. (Donaldson v. Henry, 61 Idaho 634, 105 P.2d 731.)

October 22, 1940, Anna E. Donaldson and J. L. Donaldson filed a motion in said court and cause to amend the decree of foreclosure entered August 4, 1933, nunc protunc. This motion was made upon the ground the judgment entered in said action August 4, 1933,

"was not the true judgment rendered by said court at said time and that said judgment as it now stands is the result of a clerical error or misprint, and does not show the true judgment as rendered by said court, nor conform to the intentions of the judge of said court when rendering said judgment; it being the judgment of said court at said time that the defendants, Orin M. Henry and H. E. Severns were personally liable for said mortgage debt, and that any deficiency remaining after the sale of said premises, plus interest, expense of foreclosure and costs be docketed against said defendants, Orin M. Henry and H. E. Severns, who are personally liable therefor."

November 25, 1940, the motion to amend was denied. This appeal is from the order denying the motion.

At the outset it should be stated the former appeal (Donaldson v. Henry, supra) to this court was from an order vacating a deficiency judgment entered by the clerk of the trial court against respondents. It was held on that appeal the decree of foreclosure, as it stood, did not constitute a legal basis for the entry of a deficiency judgment, and the order vacating the deficiency judgment was therefore, affirmed. The question was not presented on that appeal as to whether a trial court has the power to amend its own records so as to make...