Kindel v. Beck & Pauli Lithographing Co.

• Decision Date: 22 December 1893
• Citation: 19 Colo. 310,35 P. 538
• Parties: KINDEL v. BECK & PAULI LITHOGRAPHING CO. [1]
• Court: Colorado Supreme Court

35 P. 538

19 Colo. 310

KINDEL v. BECK & PAULI LITHOGRAPHING CO. ^[1]

Supreme Court of Colorado

December 22, 1893

Appeal from district court, Arapahoe county.

Action by the Beck & Pauli Lithographing Company against George J Kindel on contract. From a judgment for plaintiff, and an order correcting such judgment, defendant appeals. Affirmed.

The other facts fully appear in the following statement by HAYT C.J.:

The contest in this case is over $7.73. The controversy arose as follows: In the year 1889 the appellee, the Beck & Pauli Lithographing Company, entered into a contract with appellant, Kindel, by the terms of which appellee agreed to furnish appellant 5,000 calendars at 17 1/2 cents each, or for a total of $875. The calendars were duly furnished, and accepted by appellant. When the bill for the same was presented it contained a charge of $15.27 for boxing and freight. This bill appellant refused to pay, and thereupon suit was instituted. Appellee, in its complaint, for a first cause of action alleges the furnishing of the calendars under the contract, and the payment of the sum of $15.27 for boxing and freight upon the same, and asks for judgment for these sums, with interest. It is with the first cause of action alone that we have to deal upon this appeal. To this first cause of action the defendant, by answer, interposed two defenses. The first consists of allegations to the effect that plaintiff was a foreign corporation, and had not complied with the laws of the state of Colorado with reference to filing a certificate as required by the statutes. The second plea to this cause of action consists merely of an offer on the part of the defendant to pay the sum of $875, and a denial that he was indebted in any larger amount. And the defendant further says 'that, as to said $875, he is still willing to pay, and offers to bring same into court.' The plaintiff filed a general demurrer to the first defense. It replied to so much of the second defense as constituted an answer to that part of the first cause of action which related to the item of $15.27. In this state of the pleadings, plaintiff, upon notice, moved for judgment by default for the undisputed portion of his claim. The court sustained this motion, and rendered judgment accordingly on April 23, 1890. From this the defendant prayed an appeal, which was allowed, and the amount of the bond fixed by the court. An appeal bond was filed and approved on May 1, 1890. Thereafter, before the record had been lodged in this court, and at the same term of the district court at which the judgment was rendered, after due notice plaintiff's counsel moved the court to correct the entry of the judgment by deducting therefrom the sum of $7.73 which was accordingly done. The defendant thereupon prayed another appeal, which was allowed on the condition that he file an appeal bond within a certain time. The entire proceedings appear in the record now before the court.

Markham & Carr, for appellant.

Riddell, Starkweather & Dixon, for appellee.

HAYT J., (after stating the facts.)

The first assignment of error has reference to the judgment of April 23, 1890, for $882.73. That this judgment was excessive to the amount of $7.73 has at all times been admitted by appellee, and the only question to be considered with reference thereto is as to the right of the court below to correct the same, as was attempted by the judgment entered June 30, 1890. It is apparent from the record before us that the excess in the amount of the first judgment resulted from a clerical mistake of the clerk in entering the same. It was not the judgment asked for by the plaintiff nor the one ordered by the court. Appellant, however, enters into an argument to show that the excess in the judgment resulted from a judicial, and not a clerical, error. If this were true, there is excellent authority in support of the right of the trial court to correct the error, even after the appeal was taken to this court. See Richardson v. Mellish, 3 Bing. 346, 14 E. C. L. 366; Rew v. Barker, 14 Amer. Dec. 515, and notes; Conningham v. Fontaine, 25 Ala. 644; Dow v. Whitman, 36 Ala. 604; Hunt v. Wallis, 6 Paige, 371; Browner v. Davis, 15 Cal. 9; Tryon v. Sutton, 13 Cal. 490. In Richardson v. Mellish, supra, an application to amend was made in the lower court, pending an appeal. In allowing the amendment, Best, C.J., said: 'If we do not make this amendment, the court of king's bench must give judgment on a false record. We are doing what will enable the court of king's bench to do justice. * * * I have no doubt that the king's bench will suspend their judgment; but, should we be disappointed in this, and the defendant in error, instead of taking a venire de novo, brings a writ of error, it will be our duty to certify to the house of lords, as the court of king's bench did in Dunbar v. Hitchcock, 3 Maule & S. 594, that the record sent to that house is a defective record, which will enable the house of lords to set this matter right.' In Cunningham v. Fontaine, supra, the judgment of the trial court was amended in that court nunc pro tunc, pending a writ of error, and the amended judgment certified to the appellate court, and a reversal thereby avoided In the case before us the error was purely clerical. The motion of plaintiff was not for a judgment for $882.73, but for a judgment for that part of the first cause of action not controverted, and the order of the court follows closely this language. It is as follows: 'It is ordered by the court...