Johnson v. Foreman

• Decision Date: 13 February 1900
• Docket Number: 3,015
• Parties: JOHNSON v. FOREMAN ET AL
• Court: Indiana Appellate Court

56 N.E. 254

24 Ind.App. 93

JOHNSON v. FOREMAN ET AL

No. 3,015

Court of Appeals of Indiana

February 13, 1900

From the Marion Superior Court.

Reversed.

J. H Kingsbury and Joseph Collier, for appellant.

Woodburn Masson and W. P. Reagan, for appellees.

OPINION

COMSTOCK, J.

Appellant as plaintiff brought this action to enforce a material man's lien upon a certain brick building, as well as upon the leasehold interest in the land upon which it was situated of appellee, John M. Foreman. Upon the trial the court rendered judgment, and ordered foreclosure of appellee Foreman's leasehold interest; that the lien be foreclosed as to the building; that the purchaser be granted the right to remove the building within ninety days from the date of sale. Appellee Foreman filed his motion for a new trial during the term at which judgment was rendered. This motion was overruled at the following (October) term. At the December term, 1897, appellee Foreman filed his motion to modify the original decree, which motion was, at the January term, 1898, sustained. The decree was modified by striking out the following: "And the court further finds that the real estate is not subject to plaintiff's said lien, but that the building thereon is subject thereto, and is susceptible to removal; that plaintiff's said lien thereon should be foreclosed, and said building sold to pay and satisfy the same, and that the purchaser at said sale shall be entitled to remove said building from said premises within ninety days from date of sale. * * * It is further ordered, adjudged, and decreed by the court * * * that the brick building situate thereon be sold to pay and satisfy the plaintiff's lien, and that the purchaser be authorized and empowered to remove said building within ninety days from the date of the sale,"--and in decreeing that the leasehold interest of appellee Foreman in the real estate on which the building was situate be sold to satisfy appellant's lien. The action of the trial court in sustaining this motion is the only error assigned upon this appeal.

Before entering upon a decision of the question, appellee asks this court to decide whether the appeal is within time. The judgment was rendered October 1, 1897. It was modified January 20, 1898. The appeal was perfected January 7, 1899 within one year from the date of the modification of the judgment, at which date the time for appeal began to run. Pursley v. Wickle, 4 Ind.App. 382, 30 N.E. 1115, and authorities there cited.

It is argued by appellant (1) that the trial court had no authority to modify the original decree in the particular complained of after the term at which it was entered; (2) if it had authority, it was not properly exercised.

It is settled law in this State that courts have power to correct mistakes and supply omissions in their records whenever and wherever the records supply the means of making such corrections or supplying such omissions. Pursley v Wickle, supra; Miller v. Royce, 60 Ind. 189; Reily v. Burton, 71 Ind. 118; Chissom v. Barbour, 100 Ind. 1. This power is inherent in courts. Black on Judg., § 161; Freeman on Judg. (3rd ed.), § 71. During the term in which judgment is rendered, this power is not restricted to clerical misprisions or omissions, but to errors of the court, because during the term proceedings are in all respects in fieri. Clerical errors may be amended after the term at which judgment is rendered, for the purpose of making the record speak the truth, and not for the purpose of reversing a judgment. "An independent ruling or decision can not be created now for then." It will be observed that the...