In re Appeal From Lake Alice Sewer Assessment
| Decision Date | 10 October 1930 |
| Docket Number | 28,029 |
| Citation | 232 N.W. 322,181 Minn. 329 |
| Parties | IN RE APPEAL FROM LAKE ALICE SEWER ASSESSMENT; FRANCIS T. WILSON AND OTHERS v. CITY OF FERGUS FALLS |
| Court | Minnesota Supreme Court |
Proceeding in the district court for Otter Tail county for the establishment by the city of Fergus Falls of a sewer district and for the collection of assessments thereunder. From an order, Roeser, J. vacating an order made by Cameron J. and reinstating an order made by Gunderson, J. which amended the conclusions of law in the order for judgment and the judgment so as to hold that the property involved would not be benefited by the improvement and was not subject to assessment, the city appealed. Reversed.
Appealable order.
1. An order annulling an order vacating an order for an amendment to a judgment is appealable.
Errors in judgments and records which court may correct.
2. A court of record may correct its own clerical errors and mistakes at any time so as to make its judgments and records conform to what it intended they should be. Not so with errors of substance, of judgment, and of law.
Clerical error defined.
3. A clerical error is usually one of form; and in reference to an order for judgment or a judgment, as regards correction, includes an error made by the court which cannot reasonably be attributed to the exercise of judicial consideration or discretion.
Amendment of conclusions and judgment was correction of judicial rather than clerical error.
4. In a proceeding to collect special assessments the trial court held the proceedings void for irregularity and want of jurisdiction. An amendment to the conclusions of law and judgment stating the property was not benefited by the improvement so as to constitute res adjudicata, which was not necessary to the original decision, held to relate to a matter of substance, of judgment, and of law affecting the merits and not a mere error of form.
Such amendment by ex parte order was reversible error.
5. It was reversible error so to amend the order for judgment and judgment by an ex parte order. Counsel, having appeared in the case, was entitled to notice of all subsequent proceedings.
W. P. Berghuis, City Attorney, for appellant.
Leonard Eriksson and Harold Ranstad, for respondent property owners.
The city of Fergus Falls established a sewer district. Some of the property owners appealed from their assessments to the district court. Judge Gunderson, now deceased, filed an order March 3, 1928, wherein he found as conclusions of law that the assessment proceedings were void and that the city acted without jurisdiction. Judgment was entered April 10, 1928.
The findings of fact were lengthy and contained a finding that the market value of the property involved was not benefited by the construction of the sewer.
After the entry of judgment the city, acting under its charter provisions, proceeded to reassess the property affected by the sewer district, and a reassessment was made and completed.
Thereafter and on August 22, 1928, counsel for the property owners presented to Judge Gunderson a petition for an order authorizing and directing the clerk to amend the conclusions of law in the order for judgment and the judgment so as to include:
"And the property hereinbefore described should be adjudged not to have been benefited by the attempted improvement * * * and said properties are not subject to assessment."
Judge Gunderson suggested to counsel presenting the petition the propriety of a hearing after notice to opposing counsel. But an ex parte order was made as requested. The clerk on August 23, 1928, entered an amended order for judgment and amended judgment. This was not learned by the city until January 25, 1929.
Pursuant to a notice of motion made by the city, Judge Cameron, on February 15, 1929, made an order vacating and annulling the order of August 23, 1928, and the amendments made pursuant thereto. Immediately thereafter counsel for the property owners noticed a motion to vacate the order made by Judge Cameron. This notice was returnable before Judge Cameron. The moving parties filed an affidavit of prejudice, and then the motion came on for hearing before Judge Roeser, who entertained the motion and "ordered, adjudged, determined and decreed" that the order of Judge Gunderson of August 22, 1928, was properly and intentionally made to correct a clerical mistake; that the order of Judge Cameron was improvidently made without authority and was annulled; and that the order for the Gunderson amendment be ratified. The appeal is from Judge Roeser's order.
1. The language of the order precludes the idea that a judgment was to be entered. It in effect determined the question presented. A judgment from which an appeal might be taken was unnecessary. It was a final order. It was appealable. G.S. 1923 (2 Mason, 1927) § 9498(5,7).
2. A court of record may correct its own clerical errors and mistakes at any time so as to make its judgments and records conform to what it intended they should be. McClure v. Bruck, 43 Minn. 305, 45 N.W. 438; Chase v. Whitten, 62 Minn. 498, 65 N.W. 84; First T. & S. Bank v. U.S.F. & G. Co. 163 Minn. 168, 203 N.W. 612. We refer to matters which do not involve third persons.
After a judgment or decree has been deliberately entered as the result of judicial consideration, the power of the court to amend or...
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