Pleyte v. Pleyte

• Decision Date: 30 June 1890
• Citation: 24 P. 579,15 Colo. 44
• Parties: PLEYTE v. PLEYTE.
• Court: Colorado Supreme Court

24 P. 579

15 Colo. 44

PLEYTE v. PLEYTE.

Supreme Court of Colorado

June 30, 1890

Error to district court, Arapahoe county.

On motion for leave to file a supplemental transcript. For opinion on former appeal from the action of the trial court in declining to amend its record, see 23 P. 1007. Code Civil Proc. Colo. § 75, provides that a court 'may, upon such terms as may be just, and upon payment of costs, relieve a party or his legal representatives from a judgment, order, or other proceeding taken against him through mistake inadvertence, surprise, or excusable neglect; and when, for any cause satisfactory to the court, or the judge at chambers, the party aggrieved has been unable to apply for the relief sought during the term at which such judgment order, or proceeding complained of was taken, the court or judge at chambers, in vacating may grant the relief upon application made within a reasonable time, not exceeding six months after the adjournment of the term.'

Sullivan & May and Coe & Freeman for plaintiff in error.

Patterson & Thomas, for defendant in error.

HELM C.J.

Subsequent to the issue of the present writ of error, defendant in error, by leave of court, filed a supplemental transcript of record. Plaintiff in error then for the first time, as it is alleged, became a ware of the following record recital, which appears in the supplemental transcript: 'Thereupon, this cause comes on for trial before the court upon defendant's cross-complaint; neither party desiring a jury.' She asserted the fact to be that she demanded a jury, and at no time, by word or act, waived the same, but that the court denied her the privilege, and therefore that the recital in question is false, and the true action taken is not recorded. Further proceedings in this court were suspended so that she might procure a correction of the record. The superior court of Denver, in which the cause was tried had in the mean time ceased to exist; and its records had been transferred, in pursuance of law, to the district court of Arapahoe county. Application to the latter court resulted in a denial of the amendment. The court expressly found, however, that the facts were as claimed by petitioner; that she did demand a jury, and did not waive her right thereto; and that the petition was presented at once upon discovery of the clerical mistake in recording the proceedings. But it held, nevertheless, that, as a matter of law, it could not permit the amendment of the record to correspond with the fact. Exception being duly taken to the judgment dismissing the petition, a transcript of the proceedings in connection therewith is now presented for filing in this court as a supplemental record. Notice of the present application has been served on opposing counsel, and arguments are filed by both parties. It is agreed that we may at this time consider and pass upon the correctness of the rulings made in this supplemental proceeding by the district court, as well as upon the technical objections against filing the supplemental transcript here.

The general practice pursued by plaintiff in error in the premises has received the sanction of this court. See opinion upon a former motion in this controversy, 23 P. 1007, and cases there cited. The statute, in abolishing superior courts, provided for the transfer of all business pending therein to the district courts. This statute does not in words authorize the latter court to amend or correct the records of the former; but the authority given over such causes, proceedings, and records is broad, and, in our judgment, fairly comprehends the power in question. Besides as we shall presently see, authority to correct clerical mistakes in their records is inherent in courts, and not necessarily dependent upon legislative enactment. The fact that the record was made by another tribunal would induce great circumspection and caution in the premises; and unless, in a proper manner and by proper proofs, the mistake or defect were clearly shown, no correction would be allowed. But we are satisfied that the legislative design in the premises was to authorize any and all proceedings before the district court, relating to causes from the superior court, which the superior court itself, if still...